IN RE: Myrodes KONSTANTINIDES (2000)

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the defendant appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated January 31, 2000, which granted the application.

ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, and the application is denied.

In determining whether to grant leave to serve a late notice of claim, the court must consider “whether the public corporation * * * acquired actual knowledge of the essential facts constituting the claim within [90 days after it arose] * * * or within a reasonable time thereafter” (General Municipal Law § 50-e[5] ).   The court shall also consider “whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits” (General Municipal Law § 50-e [5] ).

The Supreme Court improvidently exercised its discretion in granting the petitioner's application for leave to serve a late notice of claim, made over six months after the accident.   The listing of the alleged sidewalk defect on a map filed by the Big Apple Pothole and Sidewalk Protection Corporation nine months before the accident did not suffice to give the City actual knowledge of the essential facts or nature of the petitioner's claim (see, Matter of Gomez v. City of New York, 250 A.D.2d 443, 673 N.Y.S.2d 109;  Matter of DiBella v. City of New York, 234 A.D.2d 366, 367, 650 N.Y.S.2d 311;  Matter of Adlowitz v. City of New York, 205 A.D.2d 369, 613 N.Y.S.2d 174;  Matter of Rios v. City of New York, 180 A.D.2d 801, 580 N.Y.S.2d 438). Furthermore, the delay substantially prejudiced the City's ability to investigate the alleged sidewalk defect and other circumstances surrounding the accident (see, Matter of Gofman v. City of New York, 268 A.D.2d 588, 702 N.Y.S.2d 620;  Matter of Morrison v. New York City Health & Hosps. Corp., 244 A.D.2d 487, 664 N.Y.S.2d 342;  Speciale v. City of New York, 204 A.D.2d 430, 614 N.Y.S.2d 179).

MEMORANDUM BY THE COURT.