Matter of Iacone v Town of HempsteadMatter of Iacone v Town of Hempstead
Kalb & Rosenfeld, P.C., Commack, N.Y. (John A. Meringolo of counsel), for respondents.
In a proceeding pursuant to
Ordered that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the petition is denied.
Among the factors to be considered by a court in determining whether leave to serve a late notice of claim should be granted is whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter; whether the claimant was an infant, or mentally or physically incapacitated; whether the claimant, in serving a notice of claim, made an excusable error concerning the identity of the public corporation against which the claim should be asserted; whether the delay would substantially prejudice the public corporation in maintaining its defense; and whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim (see
Here, the petitioners failed to demonstrate that the appellant, Town of Hempstead, obtained actual knowledge of the essential facts of the claim by virtue of prior complaints from residents to install a traffic signal light at the intersection where the accident occurred. There was no showing that the appellant [*2]had actual timely knowledge of the occurrence of the subject accident, the identity of the petitioners as claimants, the nature of the claim, the cause of the accident, or of any connection between the infant petitioner‘s injuries and any alleged negligence of the appellant (see Matter of Mitchell v City of New York, 77 AD3d 754, 755 [2010]; Matter of Devivo v Town of Carmel, 68 AD3d at 992; Ribeiro v Town of N. Hempstead, 200 AD2d 730, 731 [1994]; Kravitz v County of Rockland, 112 AD2d 352, 352-353 [1985], affd 67 NY2d 685 [1986]). Furthermore, the petitioners failed to show that the delay of almost two years after the accident in seeking leave to serve a notice of claim did not prejudice the appellant‘s ability to maintain a defense on the merits (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 152; Matter of Acosta v City of New York, 39 AD3d 629, 630 [2007]; Matter of Henriques v City of New York, 22 AD3d 847, 848 [2005]). The petitioners’ delay prevented the appellant from conducting a timely investigation into whether the alleged dangerous condition was a cause of the accident and from interviewing potential witnesses while their recollections were fresh (see Matter of Gillum v County of Nassau, 284 AD2d 533, 534 [2001]; Kravitz v County of Rockland, 112 AD2d at 353).
Moreover, the petitioners’ attorney failed to demonstrate a reasonable excuse for the lengthy delay between the time of the appointment of guardians for the infant petitioner, and the instant application (see Matter of Kyser v New York City Hous. Auth., 178 AD2d 601 [1991]; Matter of Dube v City of New York, 158 AD2d 457 [1990]; Kravitz v County of Rockland, 112 AD2d at 353; cf. Matter of Tara V. v County of Otsego, 12 AD3d 984, 986 [2004]). Accordingly, the petition for leave to serve a late notice of claim on behalf of the infant petitioner should have been denied.
In light of our determination, we need not reach the appellant‘s remaining contention. Dillon, J.P., Leventhal, Belen, Austin and Cohen, JJ., concur.