IN RE: Carlos Santiago

Reset A A Font size: Print

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

IN RE: Carlos Santiago, Petitioner–Appellant, v. New York City Transit Authority, Respondent–Respondent.

5400– 5400A

Decided: June 23, 2011

Tom, J.P., Friedman, Acosta, Richter, DeGrasse, JJ. Alexander J. Wulwick, New York, for appellant. Wallace D. Gossett, Brooklyn (Jane Shufer of counsel), for respondent.


Order, Supreme Court, Bronx County (John A. Barone, J.), entered July 30, 2009, which, to the extent appealed from, denied petitioner's motion for leave to file a late notice of claim, and order, same court and Justice, entered May 14, 2010, which, to the extent appealed from as limited by the briefs, denied petitioner's motion to renew the prior motion, unanimously affirmed, without costs.

Petitioner's proffered excuse of law office failure does not adequately excuse the delay in serving a notice of claim (see Ordillas v. MTA N.Y. City Tr., 50 AD3d 391 [2008] ).   In addition, respondent did not acquire actual notice of the essential facts constituting the claim within the statutorily prescribed 90–day period or within a reasonable time thereafter (see General Municipal Law § 50–e[5];  see also Ordillas, 50 AD3d at 391–392).   Lastly, petitioner's unsupported assertion that the condition of the subway staircase upon which he allegedly tripped remained unchanged seven months after his accident is insufficient to demonstrate the lack of any prejudice to respondent from his delay (see Matter of Kelley v New York City Health & Hosps.   Corp., 76 AD3d 824, 828–829 [2010];  Ordillas, 50 AD3d at 392).

Supreme Court properly denied petitioner's motion to renew.   The color photographs of the alleged defect do not constitute new facts not offered on the prior motion that would change the prior determination (see CPLR 2221[e] [2];  William P. Pahl Equip.   Corp. v. Kassis, 182 A.D.2d 22, 27 [1992], lv dismissed in part and denied in part 80 N.Y.2d 1005 [1992] ).