IN RE: Kelvin AGUILERA (2025)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about March 14, 2024, which denied petitioner's motion for leave to file and serve a late notice of claim, unanimously affirmed, without costs.

In this personal injury action, Supreme Court providently exercised its discretion in denying petitioner's motion because petitioner failed to establish any of the relevant statutory factors that would warrant leave to serve a late notice of claim (see Matter of Sproule v. New York Convention Ctr. Operating Corp., 180 A.D.3d 496, 497, 120 N.Y.S.3d 5 [1st Dept. 2020]).  Petitioner's excuse for the 35–day delay is that he was ignorant of the statutory requirement and relied on his prior law firm to protect his legal rights;  however, ignorance of the law is not a reasonable excuse (see Matter of Yan Ping Xu v. New York City Dept. of Health & Mental Hygiene, 121 A.D.3d 559, 561, 995 N.Y.S.2d 23 [1st Dept. 2014], lv denied 27 N.Y.3d 902, 2016 WL 1203506 [2016], cert denied 580 U.S. 1052, 137 S.Ct. 641, 196 L.Ed.2d 522 [2017]).  Moreover, petitioner's excuse that his prior law firm failed to act is unavailing (see Matter of Salazar v. Metropolitan Transp. Auth., 219 A.D.3d 1237, 1238, 196 N.Y.S.3d 62 [1st Dept. 2023]).  Although the failure to proffer a reasonable excuse is not alone fatal to a motion for leave to serve a late notice, an excuse of law office failure is not a reasonable excuse for failing to timely serve a notice of claim (see Colarossi v. City of New York, 118 A.D.3d 612, 612, 989 N.Y.S.2d 24 [1st Dept. 2014]).

Petitioner also failed to demonstrate that respondents had actual knowledge of the essential facts of his claim within 90 days of the accident or a reasonable time thereafter, and the proposed notice of claim was insufficiently particular to permit respondents to investigate petitioner's claim.  Specifically, the proposed notice of claim was vague regarding the location of the accident, did not state a time of day, did not identify the specific scissor lift on which petitioner was working, or detail the relationship between petitioner and his employer and each respondent.  The proposed notice of claim also did not provide information as to whether a defective condition of the lift was a factor in the accident, and if so, the nature of that condition (see O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158 [1981]).  The photographs attached to the proposed notice of claim did not fill in the necessary information in that they did not identify the precise accident location or the specific scissor lift that was involved.

Additionally, petitioner failed to show that respondents were not prejudiced by the delay because the vagueness of the proposed notice of claim impeded respondents’ ability to locate witnesses and identify and examine the equipment (see Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90 [1981]).  Because of petitioner's initial failure to show a lack of prejudice, the burden never shifted to respondents (see Nossogona C. v. New York City Health & Hosps. Corp., 213 A.D.3d 407, 408, 183 N.Y.S.3d 374 [1st Dept. 2023]).

We have considered petitioner's remaining arguments and find them unavailing.