TAVAREZ v. CITY OF NEW YORK

Reset A A Font size: Print

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

Ana S. TAVAREZ, Petitioner-Appellant, v. The CITY OF NEW YORK, et al., Respondents-Respondents.

Decided: February 28, 2006

SAXE, J.P., MARLOW, GONZALEZ, CATTERSON, McGUIRE, JJ. The Pagan Law Firm, P.C., New York (Tania M. Pagan of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Faviola A. Soto, J.), entered June 17, 2004, which denied petitioner's application to serve a late notice of claim for personal injuries allegedly sustained in a trip and fall over a depression on the landing or entrance to respondents' school, and dismissed the petition, unanimously affirmed, without costs.

 Petitioner fell on January 14, 2003 but did not make the instant application until April 12, 2004.   She attributes this delay to the crippling injuries she sustained in the fall but fails to provide any substantiating medical evidence (see Matter of Rivera v. New York City Hous. Auth., 25 A.D.3d 450, 451, 807 N.Y.S.2d 373 [2006] ).   Petitioner also asserts that a Mr. Tejada, whom she took to be a teacher or administrator at the school, came out of the school and asked her for her name and address.   Aside from the speculative nature of petitioner's belief that Mr. Tejada was a school employee, her allegations concerning him do not permit the inference she draws that an accident report was promptly prepared recording her claim that she tripped over a depression in the landing and given to persons responsible for conducting an investigation of that claim (see Washington v. City of New York, 72 N.Y.2d 881, 532 N.Y.S.2d 361, 528 N.E.2d 513 [1988];  Matter of Davis v. New York City Hous. Auth., 233 A.D.2d 110, 649 N.Y.S.2d 141 [1996] ).  “[K]nowledge of the facts underlying an occurrence does not constitute knowledge of the claim” (Chattergoon v. New York City Hous. Auth., 161 A.D.2d 141, 142, 554 N.Y.S.2d 859 [1990], affd. 78 N.Y.2d 958, 574 N.Y.S.2d 934, 580 N.E.2d 406 [1991] ).   Nor is there any evidence that petitioner made any attempt to procure the report she believes was prepared or to locate Mr. Tejada (cf. Washington, 72 N.Y.2d 881, 532 N.Y.S.2d 361, 528 N.E.2d 513, supra ).   Assuming, as petitioner asserts, that the depression still existed at the time she made the instant application, such would not negate the loss of opportunity to locate witnesses while memories were still fresh and other prejudice caused respondents by her long delay in giving them notice of her claim (see Turkenitz v. City of New York, 213 A.D.2d 266, 624 N.Y.S.2d 127 [1995];  Matter of Merino v. Metropolitan Transp. Auth., 204 A.D.2d 329, 330, 611 N.Y.S.2d 273 [1994] ).   We have considered petitioner's other arguments and find them unavailing.