IN RE: Mozelle PURIFOY (2009)

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the appeal is from an order of the Supreme Court, Suffolk County (Mayer, J.), dated June 2, 2008, which granted the petition.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the petition is denied.

The Supreme Court improvidently exercised its discretion in granting the petition for leave to serve a late notice of claim on the County of Suffolk.   The key factors to be considered are whether the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the public corporation in maintaining its defense on the merits (see General Municipal Law § 50-e[5];  Matter of Termini v. Valley Stream Union Free School Dist. No. 13, 2 A.D.3d 866, 867, 769 N.Y.S.2d 596;  Matter of DiBella v. City of New York, 234 A.D.2d 366, 367, 650 N.Y.S.2d 311).

The petitioner did not offer a reasonable excuse for her failure to serve a timely notice of claim upon the County (see Matter of Termini v. Valley Stream Union Free School Dist. No. 13, 2 A.D.3d at 867, 769 N.Y.S.2d 596;  Matter of Gilliam v. City of New York, 250 A.D.2d 680, 673 N.Y.S.2d 172;  Matter of Embery v. City of New York, 250 A.D.2d 611, 671 N.Y.S.2d 984).   Furthermore, the petitioner failed to establish that the County possessed any records which provided the County with actual notice of the essential facts constituting her claim within 90 days of its accrual or a reasonable time thereafter (see Matter of Eaddy v. County of Nassau, 282 A.D.2d 675, 723 N.Y.S.2d 408;  Matter of Przybyszewski v. City of New York, 225 A.D.2d 556, 638 N.Y.S.2d 764;  Matter of Caruso v. County of Westchester, 220 A.D.2d 746, 633 N.Y.S.2d 75).   Moreover, the petitioner failed to establish that the 11-month delay after the expiration of the 90-day statutory period would not substantially prejudice the County in maintaining a defense on the merits (see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 152, 851 N.Y.S.2d 218;  Matter of Lorseille v. New York City Hous. Auth., 295 A.D.2d 612, 744 N.Y.S.2d 880;  Matter of Sica v. Board of Educ. of City of N.Y., 226 A.D.2d 542, 640 N.Y.S.2d 610).