Nieves v. Girimonte , 765 N.Y.S.2d 64 ( 2003 )

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the Suffolk County Water Authority appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated August 29, 2002, which granted the application.

Ordered that the order is reversed, on the facts and as a matter of discretion, with costs, and the application is denied.

On August 22, 2001, the infant petitioner (hereinafter the infant) allegedly sustained injuries when she fell from her bicycle as a result of a hazardous condition located upon the property of the respondents Frank Girimonte and Paul Girimonte. It was later revealed that this condition was an open trench that was excavated for the entire length of the Girimontes’ front yard from the edge of the sidewalk to the edge of the house, and that the infant’s fall occurred on the portion nearest to the sidewalk. Shortly after the accident took place, counsel for the petitioners contacted the Girimontes and requested that they notify their homeowners’ insurance carrier. Approximately six months later, by letter dated February 28, 2002, the carrier advised counsel that it was disclaiming coverage because “[o]ur investigation has revealed the sidewalk * * * where [the infant] fell was dug up by the Suffolk County Water Authority prior to your loss date, and effected repairs to the same sidewalk 9/10/01.” On July 16, 2002, almost five months after receipt of the carrier’s letter, the petitioners’ counsel filed their application for leave to serve a late notice of claim upon the Suffolk County Water Authority (hereinafter the Authority). The Supreme Court granted the application. We reverse.

It is well settled that the evaluation of an application for permission to serve a late notice of claim should be based upon consideration of certain key factors. These include whether the petitioners demonstrated a reasonable excuse for the failure to. serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits (see General Municipal Law § 50-e [5]; Matter of DiBella v City of New York, 234 AD2d 366 [1996]; Matter of Shapiro v County of Nassau, 208 AD2d 545 [1994]).

In this case, the petitioners failed to meet most of these criteria (see Matter of Mallory v City of New York, 135 AD2d 636 [1987]). First, the petitioners failed to offer an acceptable excuse for the failure to timely file a notice of claim. They assert that they did not become aware of the Authority’s involvement in the creation of the condition until counsel was notified by the insurance carrier on or about February 28, 2002. However, given the nature of the claimed defect, to wit, a large excavated area which abutted a public sidewalk, it was incumbent upon the petitioners to attempt to determine who was responsible for this situation. The record does not demonstrate that the petitioners made any attempt to investigate the area after the accident or to discover who undertook the project which resulted in the excavation (see generally Seif v City of New York, 218 AD2d 595 [1995]; Matter of D'Andrea v City of Glen Cove, 143 AD2d 747 [1988]). Furthermore, the petitioners offered no explanation as to why they waited almost five additional months after they learned of the Authority’s involvement before seeking leave to serve the late notice of claim (see Matter of D'Andrea v City of Glen Cove, supra at 748). Most importantly, the record does not support the Supreme Court’s conclusion that the Authority had actual knowledge of the essential facts constituting the claim within 90 days after the claim arose. The mere fact that the Authority may have excavated at or near the site is not tantamount to knowledge of the essential facts of the claim with respect to which the petitioners sought leave to serve a late notice (see Matter of Shapiro v County of Nassau, supra). For example, the fact that the Authority did work did not mean that it was apprised of where the plaintiff fell, what caused her to fall, her damages, or the theory of liability against the Authority. In fact, even the proposed complaint is vague as to precisely what caused the accident. In view of all of these circumstances, the court improvidently exercised its discretion in granting the petitioners’ application for leave to serve a late notice of claim upon the Authority. Santucci, J.P., Smith and Luciano, JJ., concur.