PINEDA v. CITY OF NEW YORK

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

Mercedes Isabel PINEDA, Plaintiff-Appellant, v. The CITY OF NEW YORK, et al., Defendants-Respondents.

Decided: May 22, 2003

NARDELLI, J.P., SULLIVAN, ROSENBERGER, WALLACH and GONZALEZ, JJ. Manuel D. Gomez, for Plaintiff-Appellant. Suzanne K. Colt, for Defendants-Respondents.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered January 7, 2002, which denied plaintiff's motion for leave to file a late notice of claim, unanimously affirmed, without costs.

Plaintiff's motion was properly denied.   While plaintiff's failure to proffer a reasonable excuse for her delay in complying with the notice of claim filing requirements set forth in General Municipal Law § 50(e) is not, standing by itself, fatal to her motion for leave to file a late notice of claim (see Harris v. City of New York, 297 A.D.2d 473, 473-474, 747 N.Y.S.2d 4, lv. denied 99 N.Y.2d 503, 753 N.Y.S.2d 806, 783 N.E.2d 896), plaintiff's concomitant failure to demonstrate that defendants had timely actual notice of her claim and that they sustained no prejudice by reason of her delay, is (id.).   Actual notice to defendants is not established by the police report prepared the day following the incident or by plaintiff's photographs taken the same day as the police report.   Neither the police report nor the photographs provided any indication of a causal connection between plaintiff's injuries and acts of negligence on defendants' part (cf.  Ayala v. City of New York, 189 A.D.2d 632, 633-634, 592 N.Y.S.2d 352).   Nor did they enable defendants to investigate the incident since they did not sufficiently specify the accident site (see Reyes v. City of New York, 281 A.D.2d 235, 722 N.Y.S.2d 17) or identify witnesses, or even the Department of Transportation official to whom the accident was allegedly reported.