IN RE: Kamaldai GOBARDHAN

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

IN RE: Kamaldai GOBARDHAN, et al., appellants, v. CITY OF NEW YORK, respondent.

Decided: July 21, 2009

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ. Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell Dranow of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Deborah A. Brenner 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 petitioners appeal from an order of the Supreme Court, Queens County (Flug, J.), dated March 6, 2008, 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 under the relevant facts and circumstances of this case (see General Municipal Law § 50-e[5] ).   The City of New York did not acquire actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter (see General Municipal Law § 50-e[1], [5] ).   Contrary to the petitioners' contention, the mere filing of a police accident report with the New York City Department of Transportation did not constitute notice of the claim to the City (see Ribeiro v. Town of N. Hempstead, 200 A.D.2d 730, 731, 607 N.Y.S.2d 108;  Matter of Dube v. City of New York, 158 A.D.2d 457, 458, 551 N.Y.S.2d 50;  Matter of Perry v. City of New York, 133 A.D.2d 692, 692, 519 N.Y.S.2d 862;  Caselli v. City of New York, 105 A.D.2d 251, 256, 483 N.Y.S.2d 401).   In addition, the petitioners failed to show that the delay in commencing this proceeding for more than 10 months after the accident will not substantially prejudice the City in maintaining its defense on the merits (see Matter of Landa v. City of New York, 252 A.D.2d 525, 526, 675 N.Y.S.2d 377;  Ribeiro v. Town of N. Hempstead, 200 A.D.2d at 731, 607 N.Y.S.2d 108;  Matter of Perry v. City of New York, 133 A.D.2d at 692, 519 N.Y.S.2d 862).

Moreover, the only excuse proffered by the petitioners for attempting to serve an unauthorized late notice of claim five months after the expiration of the 90-day statutory period was law office failure, which is not an acceptable excuse for the failure to timely comply with the provisions of General Municipal Law § 50-e (see Matter of Roland v. Nassau County Dept. of Social Servs., 35 A.D.3d 477, 478, 828 N.Y.S.2d 94;  Matter of Belenky v. Nassau Community Coll., 4 A.D.3d 422, 423, 771 N.Y.S.2d 379;  Matter of Valestil v. City of New York, 295 A.D.2d 619, 744 N.Y.S.2d 701).   Furthermore, the petitioners failed to explain the additional lapse of 2 1/212 months between their attempt to serve the late notice of claim without the required court authorization and the commencement of the instant proceeding for leave to serve a late notice of claim (see Matter of Camilleri v. County of Suffolk, 190 A.D.2d 669, 593 N.Y.S.2d 73;  Kravitz v. County of Rockland, 112 A.D.2d 352, 353, 491 N.Y.S.2d 802, affd. 67 N.Y.2d 685, 499 N.Y.S.2d 941, 490 N.E.2d 860).

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