

Matter of Fernandez v City of New York (2015 NY Slip Op 06509)





Matter of Fernandez v City of New York


2015 NY Slip Op 06509


Decided on August 12, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on August 12, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
SANDRA L. SGROI, JJ.


2013-09883
 (Index No. 501331/13)

[*1]In the Matter of Jose Fernandez, appellant, 
vCity of New York, respondent.


Hofmann & Schweitzer, New York, N.Y. (Paul T. Hofmann of counsel), for appellant.
Kaufman Dolowich & Voluck, LLP, Woodbury, N.Y. (Michael V. DeSantis of counsel), for respondent.

DECISION & ORDER
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Kings County (Landicino, J.), dated June 17, 2013, which denied the petition.
ORDERED that the order is affirmed, with costs.
In determining whether to extend the time to serve a notice of claim, the court must consider " whether the public corporation acquired actual [knowledge] of the essential facts constituting the claim within 90 days of the accrual of the claim or within a reasonable time thereafter,'" as well as whether the claimant has a reasonable excuse for the failure to serve a timely notice of claim, and whether the delay would substantially prejudice the public corporation in its defense on the merits (Matter of Katsiouras v City of New York, 106 AD3d 916, 917, quoting Matter of Jackson v Newburgh Enlarged City School Dist., 85 AD3d 1031, 1031; see General Municipal Law § 50-e[5]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147).
Here, the record that a call had been made to the 911 emergency number, an ambulance report, and hospital records submitted by the petitioner show only that the respondent, the City of New York, had actual knowledge of the petitioner's accident, but not that the City had actual knowledge of the essential facts constituting the petitioner's claims that it had violated Labor Law §§ 200, 240(1), and 241(6) (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 149-150; Matter of DiBella v City of New York, 234 AD2d 366; cf. Matter of Fennell v City Sch. Dist. of City of Long Beach, 118 AD3d 783, 783-784). Moreover, the petitioner's claimed ignorance of the notice of claim requirement does not excuse his failure to timely serve a notice of claim (see Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d 790, 791; Quilliam v State, 282 AD2d 590; Matter of Gilliam v City of New York, 250 AD2d 680; Weber v County of Suffolk, 208 AD2d 527). Further, the petitioner's excuse that he was unaware of the severity of his injury "is unavailing without supporting medical evidence explaining why the possible permanent effects of the injury took so long to become apparent and be diagnosed" (Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 151; see Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d at 791). Finally, the delay in serving the notice of claim prejudiced the [*2]City, as it was prevented from conducting an investigation in which it could have examined the conditions and circumstances of the alleged incident within 90 days after the alleged incident or within a reasonable time thereafter, and could have interviewed witnesses while their memories were still fresh (see Matter of Ryan v New York City Tr. Auth., 110 AD3d 902, 904; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 153; Matter of Gillum v County of Nassau, 284 AD2d 533).
The petitioner's remaining contentions are improperly raised for the first time on appeal (see NYCTL 2009-A Trust v Tsafatinos, 101 AD3d 1092, 1094; NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043, 1044).
Accordingly, the Supreme Court providently exercised its discretion in denying the petition.
MASTRO, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


