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

IN RE: Mariya GOFMAN, respondent, v. CITY OF NEW YORK, appellant.

Decided: January 31, 2000

CORNELIUS J. O'BRIEN, J.P., THOMAS R. SULLIVAN, GLORIA GOLDSTEIN, DANIEL F. LUCIANO and SANDRA J. FEUERSTEIN, JJ. Michael D. Hess, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Julian L. Kalkstein of counsel), for appellant.

In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5), the City of New York appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated November 6, 1998, which granted the application.

ORDERED that the order is reversed, on the law, with costs, the application to serve a late notice of claim is denied, and the proceeding is dismissed.

 The fact that the petitioner was unaware that General Municipal Law § 50-e requires a notice of claim to be served within 90 days after accrual of the claim, is not a legally acceptable excuse for the failure to comply (see, Matter of Ragin v. City of New York, 222 A.D.2d 678, 636 N.Y.S.2d 83).   The petitioner also failed to proffer any excuse for the further delay of six months between the time she became aware of the notice of claim requirement and the time she applied for leave to serve a late notice of claim.   In addition, the petitioner offered no evidence that the City had timely notice of the essential facts of her claim before her late application (see, Joseph v. New York City Tr. Auth., 237 A.D.2d 255, 256, 655 N.Y.S.2d 396).   Finally, given the transitory nature of sidewalk defects (see, Caselli v. City of New York, 105 A.D.2d 251, 253, 483 N.Y.S.2d 401), the City was prejudiced by its inability to conduct a proper investigation while the facts surrounding this incident were still fresh (see, Zapata v. City of New York, 225 A.D.2d 543, 544, 638 N.Y.S.2d 487).


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