IN RE: Eva JAMES

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

IN RE: Eva JAMES, Appellant, v. CITY OF NEW YORK, et al., Respondents.

Decided: September 22, 1997

Before MANGANO, P.J., and COPERTINO, ALTMAN and GOLDSTEIN, JJ. Schwimmer & Sweeney, New York City (Peter P. Sweeney, of counsel), for appellant. Paul A. Crotty, Corporation Counsel, New York City (Stephen J. McGrath and Ellen B. Fishman, of counsel), for respondent City of New York. Wallace D. Gossett, Brooklyn (Anita Isola, of counsel), for respondent New York City Transit Authority.

In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5), the petitioner appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated April 10, 1996, which denied her application.

ORDERED that the order is affirmed, with one bill of costs.

 The key factors to be considered in deciding an application for leave to serve a late of notice of claim are whether the petitioner has demonstrated a reasonable excuse for the delay, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the municipality's opportunity to investigate and defend against the claim was substantially prejudiced by the delay (Matter of Buddenhagen v. Town of Brookhaven, 212 A.D.2d 605, 606, 622 N.Y.S.2d 547;  Levette v. Triborough Bridge & Tunnel Auth., 207 A.D.2d 330, 615 N.Y.S.2d 421;  Matter of Townsend v. New York City Hous. Auth., 194 A.D.2d 795, 599 N.Y.S.2d 833).

 The petitioner's excuses of ignorance of the filing requirement (Matter of Ragin v. City of New York, 222 A.D.2d 678, 636 N.Y.S.2d 83;  Weber v. County of Suffolk, 208 A.D.2d 527, 528, 616 N.Y.S.2d 807;  Matter of Magnotti v. City of New York, 206 A.D.2d 534, 614 N.Y.S.2d 766) and law office failure (see, Matter of Deegan v. City of New York, 227 A.D.2d 620, 643 N.Y.S.2d 596;  Lamper v. City of New York, 215 A.D.2d 484, 485, 626 N.Y.S.2d 253;  Burns v. New York City Tr. Auth., 213 A.D.2d 300, 301, 624 N.Y.S.2d 30) are insufficient for failing to timely serve a notice of claim.   Further, given the fact that petitioner failed to demonstrate that the municipal respondents received actual knowledge of the essential facts constituting this claim within 90 days or a reasonable time thereafter, a factor that should be accorded great weight (see, Matter of Beary v. City of Rye, 44 N.Y.2d 398, 412, 406 N.Y.S.2d 9, 377 N.E.2d 453;  Matter of Wertenberger v. Village of Briarcliff Manor, 175 A.D.2d 922, 923, 573 N.Y.S.2d 757), and that the petitioner's delay has prejudiced the municipal respondents in defending on the merits (see, Pollicino v. New York City Tr. Auth., 225 A.D.2d 750, 751, 640 N.Y.S.2d 168), we conclude that the petitioner's application was properly denied.

MEMORANDUM BY THE COURT.

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