Dardzinska v City of New York

Dardzinska v City of New York 2014 NY Slip Op 08574 Decided on December 9, 2014 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 9, 2014
Sweeny, J.P., DeGrasse, Manzanet-Daniels, Feinman, Gische, JJ.
13718N 159313/13

[*1] Helen Dardzinska, Petitioner-Respondent,

v

City of New York, et al., Respondents-Appellants.

Rafter & Associates PLLC, New York (Howard K. Fishman of counsel), for appellants.

Bader, Yakaitis & Nonnenmacher, LLP, New York (Robert E. Burke of counsel), for respondent.

Order, Supreme Court, New York County (Kathryn Freed, J.), entered February 14, 2014, which granted petitioner's application for leave to file a late notice of claim upon respondents, unanimously reversed, on the law and the facts, without costs, the application denied, and the petition dismissed.

While no one factor is controlling, here petitioner failed to establish any of the relevant statutory factors that would warrant leave to serve a late notice of claim (General Municipal § 50-e[5]; Matter of Kelley v New York City Health & Hosps. Corp., 76 AD3d 824 [2010]). Petitioner failed to make an adequate showing, via medical or other evidence, that her claimed injuries prevented her from timely filing a notice of claim (see Matter of Rivera v New York City Hous. Auth., 25 AD3d 450 [1st Dept 2006]). That this is true is underscored by the fact that she was able to file a report with her employer within 90 days of her accident (see Matter of Casale v City of New York, 95 AD3d 744 [1st Dept 2012]).

It is undisputed that respondents did not acquire actual knowledge of the facts and circumstances constituting the claim within the statutory 90-day service period, or a reasonable time thereafter, and there has been no showing that a defense on the merits would not be prejudiced by the late service (id.; Matter of Rivera, 25 AD3d at 451).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 9, 2014

CLERK