IN RE: Application of Milagros GOMEZ

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

IN RE: Application of Milagros GOMEZ, Petitioner-Appellant, For an Order, etc., v. The CITY OF NEW YORK, etc., Respondent-Respondent.

Decided: May 14, 1998

Before SULLIVAN, J.P., and ROSENBERGER, WILLIAMS and TOM, JJ. Paul E. Bleifer, for Petitioner-Appellant. Deborah R. Douglas, for Respondent-Respondent.

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered June 17, 1997, which granted petitioner's motion to reargue a prior order, same court and Justice, entered March 13, 1997, denying petitioner's application for leave to serve a late notice of claim, and, upon reargument, adhered to the prior order, unanimously affirmed, without costs.   Appeal from the first order, unanimously dismissed, without costs, as superseded by the appeal from the second order.

 The application, made six months after the accident, was properly denied on the ground that the delay substantially prejudiced respondent's ability to investigate the alleged sidewalk defect and other circumstances surrounding the accident (see, Turkenitz v. City of New York, 213 A.D.2d 266, 624 N.Y.S.2d 127).   The listing of the alleged sidewalk defect on a map filed by the Big Apple Pothole and Sidewalk Protection Committee did not give respondent actual knowledge of the essential facts constituting petitioner's claim or otherwise alleviate the prejudice caused by the delay (see, Matter of Adlowitz v. City of New York, 205 A.D.2d 369, 613 N.Y.S.2d 174).   To the extent petitioner argues that her lateness should be excused because she did not realize the severity of her injury, and therefore did not hire an attorney, until advised of the need for surgery four and a half months after the accident, such an excuse cannot be accepted in the absence of supporting medical evidence (see, Gaudio v. City of New York, 235 A.D.2d 228, 651 N.Y.S.2d 530).