IN RE: Jacobo HERNANDEZ (1999)

Supreme Court, Appellate Division, Second Department, New York.

IN RE: Jacobo HERNANDEZ, appellant, v. CITY OF NEW YORK, respondent.

Decided: March 29, 1999

SONDRA MILLER, J.P., FRED T. SANTUCCI, WILLIAM D. FRIEDMANN and ANITA R. FLORIO, JJ.

Louis H. Cohen, New York, N.Y. (Kirk P. Tzanides of counsel), for appellant. Michael D. Hess, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Cheryl Payer of counsel), for respondent.

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Kings County (R. Goldberg, J.), dated December 22, 1997, which denied the petition and dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

The petitioner's contention that he was unaware of the requirements of General Municipal Law § 50-e is not a reasonable excuse for the failure to serve a timely notice of claim (see, Matter of Gaffney v. Town of Hempstead, 226 A.D.2d 721, 641 N.Y.S.2d 709). The petitioner also failed to prove that the respondent, City of New York, acquired actual knowledge of the essential facts constituting the claim within the 90-day period prescribed by statute or within a reasonable time thereafter (General Municipal Law § 50-e[5]; see, Kalenda v. Buffalo Mun. Hous. Auth., 203 A.D.2d 937, 611 N.Y.S.2d 386). Under these circumstances, the Supreme Court did not improvidently exercise its discretion by denying the application for leave to serve a late notice of claim.

The petitioner's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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