IN RE: Gustava GARCIA (2009)

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

IN RE: Gustava GARCIA, etc., appellant, v. NEW YORK CITY HOUSING AUTHORITY, respondent.

Decided: February 24, 2009

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, ANITA R. FLORIO, and EDWARD D. CARNI, JJ.

Aliazzo, McCloskey & Gonzalez, LLP, Ozone Park, N.Y. (Thomas P. McCloskey of counsel), for appellant. Herzfeld & Rubin, P.C., New York, N.Y. (Neil R. Finkston 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, Queens County (Kerrigan, J.), dated January 31, 2008, which denied the petition and dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

Although the petitioner demonstrated that the respondent acquired knowledge of the incident and her injuries within 90 days of the occurrence, she failed to establish either that the respondent had acquired knowledge of the essential facts underlying the claim within that time, or that the respondent was not substantially prejudiced by reason of her delay in serving a notice of claim. Accordingly, the Supreme Court properly denied the petition for leave to serve a late notice of claim (see State Farm Mut. Auto. Ins. Co. v. New York City Tr. Auth., 35 A.D.3d 718, 828 N.Y.S.2d 416).

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