Polanco v. New York City Housing Authority

Appellate Division of the Supreme Court of the State of New York

Apr 12, 2007

Versions:39 A.D.3d 320

833 N.Y.S.2d 471

Order, Supreme Court, Bronx County (George D. Salerno, J.), entered June 3, 2005, which denied the petition to file a late notice of claim, unanimously affirmed, without costs.

Petitioner concedes that she failed to proffer a reasonable excuse for her delay and that her accident was not reported until she made her motion, some 14 months after her claim *321arose. Her argument that respondent’s records of maintenance and snow and ice removal can provide actual notice of the essential facts underlying her claim is improperly raised for the first time on appeal (see e.g. Miles v City of New York, 173 AD2d 298, 300 [1991]). Were we to consider it, we would reject it inasmuch as the maintenance and snow and ice removal records would not have given respondent notice that petitioner had allegedly tripped, fallen and broken her leg.

Even if the claim arose out of a transitory condition, that does not preclude a finding that respondent was prejudiced by petitioner’s delay in asserting the claim (see Harris v City of New York, 297 AD2d 473, 474 [2002], lv denied 99 NY2d 503 [2002]). In Zarrello v City of New York (61 NY2d 628 [1983]), where the plaintiff had delayed for one year and 87 days, the Court of Appeals upheld a finding of prejudice for a claim “predicated on the defective state of the sidewalk and the accumulation of ice and snow” (id. at 630).

The mere existence of records does not “eliminate the inference that prejudice would accompany the passage of time” (Matter of Vargas v New York City Hous. Auth., 232 AD2d 263 [1996], lv denied 89 NY2d 817 [1997]). In any event, lack of prejudice, alone, is not determinative (see Bullard v City of New York, 118 AD2d 447, 452 [1986, Kassal, J., concurring]; see also Matter of Morris v County of Suffolk, 88 AD2d 956, 957 [1982], affd 58 NY2d 767 [1982]).

We have considered petitioner’s remaining arguments and find them without merit. Concur—Saxe, J.P., Sullivan, Nardelli, Gonzalez and Kavanagh, JJ.