IN RE: Philip MARK

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

IN RE: Philip MARK, et al., Appellants, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, et al., Respondents.

Decided: November 30, 1998

Before ROSENBLATT, J.P., and SANTUCCI, ALTMAN and FRIEDMANN, JJ. Harry I. Katz, P.C. (Paul F. McAloon, P.C., New York, N.Y., of counsel), for appellants. Michael D. Hess, Corporation Counsel, New York, N.Y. (Elizabeth S. Natrella and Susan Choi-Hausman of counsel), for respondents Board of Education of City of New York and City of New York. Scibilia, Polacco & Aledort, LLP, Hempstead, N.Y. (Charles M. Geiger of counsel), for respondent Power Authority of State of New York.

In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5), the petitioners appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated November 25, 1997, which denied their application.

ORDERED that the order is affirmed, with costs.

 The Supreme Court did not improvidently exercise its discretion in denying the petitioners' application for leave to serve a late notice of claim.   The petitioners have failed to present a legally-acceptable excuse for their delay of almost six months after the 90-day statutorily-prescribed period (see, Matter of Santana v. City of New York, 211 A.D.2d 636, 621 N.Y.S.2d 884;  Winter v. City of Geneva, 203 A.D.2d 939, 611 N.Y.S.2d 82).  In addition, the petitioners failed to provide the respondents with actual notice of the essential facts of the claim within 90 days or a reasonable time thereafter (see, Matter of Siena v. Marlboro Houses, 188 A.D.2d 534, 535, 591 N.Y.S.2d 199;  Matter of Perry v. City of New York, 133 A.D.2d 692, 519 N.Y.S.2d 862).   The conditions at the scene of the accident have changed to the prejudice of the respondents, since they never had the opportunity to conduct their own investigation before the conditions changed (see, Matter of DelValle v. City of New York, 242 A.D.2d 382, 383, 661 N.Y.S.2d 998).   In addition, the ladder was allegedly thrown out immediately after the injured petitioner's fall and cannot be examined, which further prejudices the respondents.   Accordingly, the petitioners' application must fail (cf., Wolff v. Power Auth. [Sup. Ct. Westchester County, Oct. 14, 1993 Index No. 10950/93];  see also, Matter of Garguiolo v. New York State Thruway Auth., 145 A.D.2d 915, 916, 535 N.Y.S.2d 853).

 We also note that the filing of a Workers Compensation claim does not constitute notice to the respondents of the petitioners' impending claim and does not satisfy the requirements of General Municipal Law § 50-e to serve a timely notice of claim (cf., Wolff v. Power Auth., supra;  see also, Ribeiro v. Town of N. Hempstead, 200 A.D.2d 730, 607 N.Y.S.2d 108).


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