ALEXANDER v. CITY OF NEW YORK (2003)

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered November 26, 2002, denying petitioner's application for leave to file a late notice of claim, unanimously affirmed, without costs.

Petitioner failed to demonstrate reasonable excuse for the delay in filing a timely notice of claim, failed to establish that respondents had notice of the facts constituting his claim within 90 days or reasonable time thereafter, and failed to show that respondents will not be substantially prejudiced in their ability to investigate this matter and defend the claim on the merits (Matter of Dubowy v. City of New York, 305 A.D.2d 320, 759 N.Y.S.2d 325).   His excuse for the delay-that he was awaiting an accident report-was unreasonable, inasmuch as he had all the information necessary to file a timely notice.   Contrary to petitioner's contention, the facts upon which liability is predicated were not discernible from the workers' compensation report allegedly filed with the City by petitioner's employer (see Matter of McLoughlin v. City of New York, 178 A.D.2d 193, 194, 577 N.Y.S.2d 49).   Moreover, substantial passage of time since February 2001 has prejudiced respondents' ability to investigate the alleged defects in the ladder or to collect testimony from witnesses whose memories are fresh.