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


Decided: March 24, 2009

PETER B. SKELOS, J.P., FRED T. SANTUCCI, DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and CHERYL E. CHAMBERS, JJ. Molod Spitz & DeSantis, P.C., New York, N.Y. (Marcy Sonneborn of counsel), for appellant. Valdebenito & Ardito, LLP, Garden City, N.Y. (Lori La Salvia 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 appeal is from an order of the Supreme Court, Nassau County (Spinola, J.), entered July 29, 2008, which granted the petition.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the petition is denied.

 A condition precedent to commencing a tort action against an industrial development agency is the service of a notice of claim upon it within 90 days after the claim arose (see General Municipal Law §§ 880[2], 50-e[1][a] ).   The court may, in its discretion, extend the time to serve a notice of claim (see General Municipal Law § 50-e[5];  Matter of Lodati v. City of New York, 303 A.D.2d 406, 755 N.Y.S.2d 853).   In determining whether to grant an application for leave to serve a late notice of claim, a court must consider, inter alia, whether the petitioner demonstrated a reasonable excuse for the delay, whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days after it arose or within a reasonable time thereafter, and whether the delay would substantially prejudice the public corporation in maintaining its defense on the merits (see General Municipal Law § 50-e[5];  Gibbs v. City of New York, 22 A.D.3d 717, 719, 804 N.Y.S.2d 393;  Igneri v. New York City Bd. of Educ., 303 A.D.2d 635, 756 N.Y.S.2d 783).

The Supreme Court improvidently exercised its discretion in granting the petition.   The petitioner's assertion that he was unaware of the notice of claim requirement was not a reasonable excuse for his initial delay in serving a notice of claim upon the respondent (see Matter of Gofman v. City of New York, 268 A.D.2d 588, 702 N.Y.S.2d 620;  Matter of Hernandez v. City of New York, 259 A.D.2d 751, 687 N.Y.S.2d 404;  Matter of Gaffney v. Town of Hempstead, 226 A.D.2d 721, 722, 641 N.Y.S.2d 709).   The petitioner also failed to proffer any excuse for the further 2 1/212-month delay between the time that he retained counsel and the time he made his first application for leave to serve a late notice of claim against the wrong governmental agency (see Matter of Gillum v. County of Nassau, 284 A.D.2d 533, 726 N.Y.S.2d 458).   In addition, even if the petitioner immediately reported the incident to the foreman of the general contractor on the construction site owned by the respondent and the foreman investigated the scene, this was insufficient to provide the respondent with actual knowledge of the essential facts constituting the claim (see Matter of Bruzzese v. City of New York, 34 A.D.3d 577, 578, 824 N.Y.S.2d 653;  Matter of Carpenter v. City of New York, 30 A.D.3d 594, 595, 817 N.Y.S.2d 155;  Williams v. City of Niagara Falls, 244 A.D.2d 1006, 1007, 665 N.Y.S.2d 217;  cf. Matter of Farrell v. City of New York, 191 A.D.2d 698, 595 N.Y.S.2d 531).

Finally, under the circumstances of this case, the respondent would be prejudiced by the 10-month delay between the time the claim arose and the time the petitioner commenced this proceeding for leave to serve a late notice of claim (see Matter of Groves v. New York City Tr. Auth., 44 A.D.3d 856, 857, 843 N.Y.S.2d 452;  Matter of Deegan v. City of New York, 227 A.D.2d 620, 643 N.Y.S.2d 596;  Matter of Sosa v. City of New York, 206 A.D.2d 374, 375, 614 N.Y.S.2d 50).

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