IN RE: Carole PAPAYANNAKOS

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

IN RE: Carole PAPAYANNAKOS, et al., appellants, v. LEVITTOWN MEMORIAL SPECIAL EDUCATION CENTER, et al., respondents.

Decided: March 27, 2007

ROBERT W. SCHMIDT, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, JOSEPH COVELLO, and DANIEL D. ANGIOLILLO, JJ. Podlofsky, Hill, Orange & Modzelewski, LLP, Great Neck, N.Y. (Susan E. Frazzetto of counsel), for appellants. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for respondents.

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the petitioners appeal from an order of the Supreme Court, Nassau County (LaMarca, J.), dated April 27, 2006, which denied the petition.

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the petition for leave to serve a late notice of claim upon the respondents.   The petitioners did not offer a valid excuse for their failure to timely serve a notice of claim.   The injured petitioner's assertion that the six-month delay in seeking leave to serve a late notice was due to her physical incapacity and pain was supported solely by her own conclusory and self-serving allegations and those of her counsel (see Matter of Aliberti v. City of Yonkers, 302 A.D.2d 456, 755 N.Y.S.2d 406;  Robertson v. New York City Hous. Auth., 237 A.D.2d 501, 655 N.Y.S.2d 572;  Matter of Caruso v. County of Westchester, 220 A.D.2d 746, 633 N.Y.S.2d 75).   Furthermore, the petitioner George Papayannakos did not proffer any acceptable excuse on his own behalf for the delay in seeking leave to serve a late notice (see Matter of Bensen v. Town of Islip, 99 A.D.2d 755, 756, 471 N.Y.S.2d 670).

Moreover, there is no evidence in the record establishing that the respondents acquired actual knowledge of the facts constituting the claim within 90 days from accrual of the claim or a reasonable time thereafter (see Matter of Alexander v. Board of Educ. for Vil. of Mamaroneck, 18 A.D.3d 654, 794 N.Y.S.2d 687;  Matter of Pico v. City of New York, 8 A.D.3d 287, 777 N.Y.S.2d 697;  Matter of Termini v. Valley Stream Union Free School Dist. No. 13, 2 A.D.3d 866, 769 N.Y.S.2d 596).   Finally, given the transitory nature of the alleged pavement depression, the six-month delay substantially prejudiced the respondents' ability to investigate the defect and other circumstances surrounding the accident (see Matter of Aguilar v. Town of Islip, 294 A.D.2d 358, 359, 741 N.Y.S.2d 732;  Matter of Konstantinides v. City of New York, 278 A.D.2d 235, 717 N.Y.S.2d 301;  Matter of Gofman v. City of New York, 268 A.D.2d 588, 702 N.Y.S.2d 620;  Matter of Turner v. Town of Oyster Bay, 268 A.D.2d 526, 701 N.Y.S.2d 653).

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