IN RE: Mariusz GUMINIAK

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IN RE: Mariusz GUMINIAK, respondent, v. CITY OF MOUNT VERNON INDUSTRIAL DEVELOPMENT AGENCY, appellant.

Decided: December 22, 2009

STEVEN W. FISHER, J.P., FRED T. SANTUCCI, THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ. Greenberg & Masserelli, LLP, Purchase, N.Y. (William Greenberg of counsel), for appellant. The Perecman Firm, PLLC, New York, N.Y. (David Perecman and Rudolf B. Radna 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 appeal is from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered July 15, 2009, which granted the petition.

ORDERED that the order is reversed, on the law and the facts, with costs, and the petition is denied.

The Supreme Court erred in granting the petitioner leave to serve a late notice of claim. The petitioner's delay in serving the notice of claim was the result of 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 Bridgeview at Babylon Cove Homeowners Assn., Inc. v. Incorporated Vil. of Babylon, 41 A.D.3d 404, 405-406, 837 N.Y.S.2d 330; Arias v. New York City Hous. Auth., 40 A.D.3d 298, 299, 835 N.Y.S.2d 180; Matter of Roland v. Nassau County Dept. of Social Servs., 35 A.D.3d 477, 479, 828 N.Y.S.2d 94; Seif v. City of New York, 218 A.D.2d 595, 596, 630 N.Y.S.2d 742). Moreover, the appellant did not have actual knowledge of the essential facts underlying the claim until the petitioner served the petition (see Matter of James v. City of N.Y. Dept. of Envtl. Protection, 37 A.D.3d 832, 833, 830 N.Y.S.2d 593). The reports of the police and emergency services providers relied upon here by the petitioner are insufficient to impute knowledge of the accident to the appellant (see Matter of National Grange Mut. Ins. Co. v. Town of Eastchester, 48 A.D.3d 467, 468, 851 N.Y.S.2d 632; Matter of Dancy v. Poughkeepsie Hous. Auth., 220 A.D.2d 413, 414, 631 N.Y.S.2d 879; Caselli v. City of New York, 105 A.D.2d 251, 255-256, 483 N.Y.S.2d 401). Finally, the petitioner failed to rebut the appellant's assertion that the delay substantially prejudiced its ability to investigate and defend the claim (see Matter of Landa v. City of New York, 252 A.D.2d 525, 526, 675 N.Y.S.2d 377).

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