                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     521967
________________________________

In the Matter of JIN GAK KIM,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
DORMITORY AUTHORITY OF THE
   STATE OF NEW YORK,
                    Respondent.
________________________________


Calendar Date:   April 20, 2016

Before:   Lahtinen, J.P., McCarthy, Devine, Clark and Mulvey, JJ.

                             __________


      Sackstein, Sackstein & Lee, LLP, Garden City (Laurence D.
Rogers of Cupit & Rogers, LLP, Valley Stream, of counsel), for
appellant.

      Wilson Elser Moskowitz Edelman & Dicker LLP, Albany
(Christopher Martin of counsel), for respondent.

                             __________


Lahtinen, J.P.

      Appeal from an order of the Supreme Court (Walsh, J.),
entered January 21, 2015 in Albany County, which denied
petitioner's application pursuant to General Municipal Law § 50-e
(5) for leave to file a late notice of claim.

      During a construction project on a residence dormitory
owned or controlled by respondent, petitioner – an employee of a
subcontractor – was injured when he reportedly dropped a two-by-
four board. The accident occurred on May 23, 2013 and, in mid-
August 2013, the lawyer who petitioner had consulted wrote him a
letter declining the case and warning him of an impending
deadline of August 21, 2013 for a claim against the state and the
                              -2-                521967

May 23, 2016 statute of limitations for an action against the
general contractor. A year later, in August 2014, petitioner
moved pursuant to General Municipal Law § 50-e (5) for leave to
serve a late notice of claim against respondent, asserting
liability under Labor Law §§ 200, 240 (1) and 241 (6) and seeking
$10,000,000 in damages. Supreme Court denied the motion and
petitioner appeals.

      "A trial court is vested with broad discretion to determine
whether leave to file a late notice of claim should be granted"
(Matter of Curiel v Town of Thurman, 289 AD2d 737, 738 [2001], lv
denied 97 NY2d 611 [2002]; see Matter of Conger v Ogdensburg City
School Dist., 87 AD3d 1253, 1254 [2011]). The nonexhaustive list
of pertinent factors include "whether [respondent] obtained
actual knowledge of the essential facts constituting the claim
within 90 days or a reasonable time thereafter, whether
[petitioner] offered a reasonable excuse for the delay in filing
a claim and whether that delay would substantially prejudice
[respondent], with no one factor being dispositive" (Kirtley v
Albany County Airport Auth., 67 AD3d 1317, 1318 [2009]; see
General Municipal Law § 50-e [5]; Matter of Reinemann v Village
of Altamont, 112 AD3d 1264, 1265 [2013]; Matter of Crocco v Town
of New Scotland, 307 AD2d 516, 517 [2003]).

      Petitioner contends that respondent had sufficient notice
of the essential facts since its representative prepared a report
on the day of the incident. The report briefly relates that
petitioner was holding a seven-foot long two-by-four board above
his head, he dropped it to his shoulder when distracted by a
coworker and he had a "sore shoulder." Given the general nature
of the information in the cursory report, Supreme Court did not
err in finding that respondent lacked sufficient notice of
essential facts regarding a potential claim against it or that
petitioner had sustained the ostensibly significant injuries he
now claims (see Matter of Conger v Ogdensburg City School Dist.,
87 AD3d at 1255; cf. Matter of Franco v Town of Cairo, 87 AD3d
799, 800-801 [2011]). Although petitioner contends that his
inability to understand English provides an excuse, he was able
to adequately communicate with his first attorney, who warned him
of the impending deadlines for filing and, in any event,
difficulty with English "is not a sufficient excuse for failure
                              -3-                  521967

to serve a timely notice of claim" (Figueroa v City of New York,
92 AD2d 908, 909 [1983]; see Turkenitz v City of New York, 213
AD2d 266, 266 [1995]). Nor has petitioner demonstrated a lack of
prejudice to respondent under the circumstances (see Forrest v
Berlin Cent. School Dist., 29 AD3d 1230, 1231 [2006], appeal
dismissed 7 NY3d 896 [2006]). We are unpersuaded that Supreme
Court abused its discretion in denying petitioner's motion.

     McCarthy, Devine, Clark and Mulvey, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
