Blaze v New York City Dept. of Educ.

Blaze v New York City Dept. of Educ. 2013 NY Slip Op 08032 Decided on December 3, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 3, 2013
Andrias, J.P., Acosta, Moskowitz, Richter, Manzanet-Daniels, JJ.
11240N 159164/12

[*1]Gloria Blaze, Plaintiff-Appellant,

v

New York City Department of Education, Defendant-Respondent.




Ballon Stoll Bader & Nadler, P.C., New York (Marshall B.
Bellovin of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Fay Ng
of counsel), for respondent.

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered March 11, 2013, which denied plaintiff's motion to file a late notice of claim, unanimously affirmed, without costs.

The court properly denied plaintiff's motion to file a late notice of claim, where plaintiff offered no excuse for her failure to file a timely notice of claim; failed to demonstrate that defendant acquired actual knowledge of the facts underlying the claim within 90 days or a reasonable time thereafter; and failed in her burden to demonstrate that defendant would not be substantially prejudiced by the delay (see Perez v New York City Health & Hosps. Corp., 81 AD3d 448 [1st Dept 2011]; Matter of Strauss v New York City Tr. Auth., 195 AD2d 322 [1st Dept 1993]). "[K]nowledge of the facts underlying an occurrence does not constitute knowledge of the claim. What satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the claim" (Liberty Group Holdings v City of New York, 5 AD3d 148, 149 [1st Dept 2004], lv denied 3 NY3d 609 [2004] [internal quotation marks omitted], quoting Chattergoon v New York City Hous. Auth., 161 AD2d 141, 142 [1990], affd 78 NY2d 958 [1991]).

In any event, plaintiff's claim accrued, at the latest, in April 2011, when she asserts that she was "constructively forced into early retirement," making her motion to file a late notice of claim well beyond the limitation period of, at most, 1 year and 90 days (Education Law 3813[3], [2-b]; General Municipal Law § 50-i). Thus, the court was without authority to grant plaintiff the [*2]requested relief (see Education Law § 3813 [2], [2-a]; General Municipal Law § 50-i; Consolidated Constr. Group, LLC v Bethpage Union Free School Dist., 39 AD3d 792, 794-795 [2d Dept 2007], lv dismissed 9 NY3d 980 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 3, 2013

CLERK