Robertson v. City of New York , 536 N.Y.S.2d 70 ( 1989 )

— Order, Supreme Court, New York County (Bruce Wright, J.), filed July 18, 1986, which granted plaintiff’s motion to renew a prior application for leave to serve a late notice of claim upon the City of New York and, further, denied the application, affirmed, without costs.

We find that the motion court did not abuse its discretion in denying the application. General Municipal Law § 50-e (5) gives a court discretion to extend the period of time in which a notice of claim is filed. First, there was an inordinate delay by the plaintiff in completing his application for permission to file a late notice of claim. It is alleged that the petitioner and a female companion were injured on August 18, 1983, at approximately 5:15 a.m., when a vehicle driven by the petitioner southbound on the West Side Highway near 72nd Street crashed into a barrier at an “S” curve and overturned. Petitioner’s companion, Shenikwa Nowlin, allegedly suffered paralyzing injuries and she served a notice of claim against the city on October 19, 1983, about 61 days after the accident. The city thus acquired notice of the accident at that time.

Petitioner did not file a notice of claim within the 90-day period ordinarily required by section 50-e of the General Municipal Law. Instead, he sought leave of the court to file a late notice of claim by a motion returnable on December 14, 1984. In a decision dated January 30, 1985, the motion court denied the application without prejudice to renewal “if a medical affidavit is submitted * * * shedding some medical information on the claimed loss of memory.” Petitioner had stated that the reason for the delay was his loss of memory concerning the accident until after the 1984 baseball season.

Petitioner did not renew his application to file a late notice of claim until over a year after the January 30, 1985 decision of the motion court. By a motion returnable on February 25, 1986, the petitioner renewed his application. The court denied leave to serve a late notice of claim because the physician’s affidavit did not indicate that petitioner’s loss of memory of the accident prevented his filing a timely notice of claim and we agree with that conclusion.

Second, although it is true that the city received early notice of the accident, it has been prejudiced by the delay in examining the petitioner. Following the accident the petitioner, a baseball player with the New York Yankees, did not participate further in baseball during the 1983 season. He did, however, spend most of the 1984 baseball season with the New York Yankees. One of the claims of injury is to petitioner’s arm, with resulting damage to his baseball career.

Finally, we note that none of the cases cited by the dissent involved an initial delay of approximately 1 year and 3 months in the initial application to file a late notice of claim and a subsequent delay of over a year in filing the renewed application. Concur — Murphy, P. J., Asch and Smith, JJ.