Charles M. Palumbo v City of Buffalo

Palumbo v City of Buffalo 2003 NY Slip Op 18726 [1 AD3d 1032] November 21, 2003 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

Charles M. Palumbo, Jr., Respondent,
v
City of Buffalo, Defendant, and Buffalo Municipal Housing Authority, Appellant.

— Appeal from that part of an order of Supreme Court, Erie County (Sedita, Jr., J.), entered September 16, 2002, that granted plaintiff's application for leave to serve a late notice of claim against defendant Buffalo Municipal Housing Authority.

It is hereby ordered that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and the application is denied.

Memorandum: We agree with defendant Buffalo Municipal Housing Authority (Housing Authority) that Supreme Court abused its discretion in granting plaintiff's application pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim against the Housing Authority. Although courts are vested with broad discretion in determining whether to grant such an application (see Wetzel Servs. Corp. v Town of Amherst, 207 AD2d 965 [1994]), here the court abused that discretion inasmuch as plaintiff failed to establish that the Housing Authority had actual knowledge of the essential facts constituting the claim (see Nationwide Ins. Co. v Village of Alexandria Bay, 299 AD2d 855, 856 [2002]). Plaintiff stated in his supporting affidavit that he was "informed by [his] employer . . . that city police, transit patrolmen and investigators immediately investigated the accident." That statement alone is insufficient to establish that the Housing Authority had the requisite notice of the essential facts constituting the claim (see Oates v City of Niagara Falls [appeal No. 2], 247 AD2d 829 [1998]; Matter of Dancy v Poughkeepsie Hous. Auth., 220 AD2d 413 [1995]). Present—Wisner, J.P., Hurlbutt, Scudder, Gorski and Lawton, JJ.