LEWIS v. NORTHPOLE FIRE COMPANY INC (2004)

Supreme Court did not abuse its discretion when it denied plaintiffs' application for leave to serve a late notice of claim.   The record fails to establish that defendants had timely notice of any injuries or damages claimed by plaintiffs beyond mere notice of the underlying occurrence (see Santana v. Western Regional Off-Track Betting Corp., 2 A.D.3d 1304, 1305, 770 N.Y.S.2d 258, lv. denied 2 N.Y.3d 704, 778 N.Y.S.2d 774, 811 N.E.2d 36).   Additionally, plaintiffs delayed until the day before the expiration of the applicable one-year and 90-day period before seeking relief under General Municipal Law § 50-e (5) and failed to offer a reasonable excuse for the delay, notwithstanding that plaintiffs could have had knowledge through the police report of the status of the other driver as a volunteer firefighter responding to a call (see Shapiro v. Town of Clarkstown, 238 A.D.2d 498, 499, 656 N.Y.S.2d 682, lv. denied 90 N.Y.2d 807, 664 N.Y.S.2d 269, 686 N.E.2d 1364).   Moreover, defendants established that they would be prejudiced by plaintiffs' delay because it prevented them from promptly obtaining witness statements (see Santana, 2 A.D.3d at 1305, 770 N.Y.S.2d 258).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: