Matter of Santopietro v City of New York

Matter of Santopietro v City of New York 2008 NY Slip Op 03125 [50 AD3d 390] April 10, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 18, 2008

In the Matter of Michael A. Santopietro et al., Appellants,
v
City of New York, Respondent, et al., Respondents.

—[*1] Diamond & Diamond, LLC, New York (Stuart Diamond of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York (Susan B. Eisner of counsel), for City of New York, respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered January 3, 2007, which denied petitioner's application for leave to file a late notice of claim, unanimously affirmed, without costs.

The court did not improvidently exercise its discretion, under General Municipal Law § 50-e (5), in denying petitioners' motion to file a late notice of claim (see e.g. Williams v Nassau County Med. Ctr., 6 NY3d 531 [2006]). While the failure to proffer a reasonable excuse for delay in serving a notice of claim is not alone fatal to a motion for leave to file a late notice, plaintiffs also failed to demonstrate that the City had timely actual notice of the claim and suffered no prejudice by reason of the delay (see General Municipal Law § 50-e [1] [a]; [5]; Matter of Schifano v City of New York, 6 AD3d 259 [2004], lv denied 4 NY3d 703 [2005]; Harris v City of New York, 297 AD2d 473 [2002], lv denied 99 NY2d 503 [2002]). Concur—Mazzarelli, J.P., Andrias, Gonzalez and Acosta, JJ.