The opinion
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1144
CA 12-00642
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.
BOBBIE D. BROWN AND JOSEPH BROWN,
CLAIMANTS-APPELLANTS,
V MEMORANDUM AND ORDER
CITY OF BUFFALO, RESPONDENT-RESPONDENT.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR CLAIMANTS-APPELLANTS.
TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (DAVID M. LEE OF
COUNSEL), FOR RESPONDENT-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered July 5, 2011. The order denied the
application of claimants for leave to serve a late notice of claim.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Supreme Court properly denied claimants’ application
for leave to serve a late notice of claim (see General Municipal Law §
50-e [5]; Santana v Western Regional Off-Track Betting Corp., 2 AD3d
1304, 1304, lv denied 2 NY3d 704). Bobbie D. Brown (claimant)
allegedly suffered personal injuries when she drove off the roadway up
an embankment at the dead end of Titus Avenue in respondent, City of
Buffalo. Thirteen months after the accident, claimants sought leave
to serve a late notice of claim that alleged that claimant’s injuries
resulted from respondent’s negligence in failing to provide adequate
lighting, signs, and/or guardrails at the dead end of Titus Avenue.
Claimants asserted that respondent had actual knowledge of the claim
through its police response to the accident and the police accident
report.
“It is well settled that key factors for the court to consider in
determining an application for leave to serve a late notice of claim
are whether the claimant[s] [have] demonstrated a reasonable excuse
for the delay, whether [respondent] acquired actual knowledge of the
essential facts constituting the claim within 90 days of its accrual
or within a reasonable time thereafter, and whether the delay would
substantially prejudice [respondent]” (Le Mieux v Alden High School, 1
AD3d 995, 996). Here, the court did not abuse its discretion in
denying the application inasmuch as claimants failed to establish a
reasonable excuse for the delay or that respondent had “ ‘actual
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CA 12-00642
knowledge of the essential facts constituting the claim’ ” (Folmar v
Lewiston-Porter Cent. School Dist., 85 AD3d 1644, 1645).
Here, claimants asserted as an excuse for their failure to serve
a timely notice of claim only that they were unaware of the notice of
claim requirement. Thus, claimants did not establish a reasonable
excuse for their delay (see Le Mieux, 1 AD3d at 996). With respect to
actual knowledge, we note that, “for a [police] report to provide
actual knowledge of the essential facts, one must be able to readily
infer from that report that a potentially actionable wrong had been
committed by the public corporation” (Matter of Taylor v County of
Suffolk, 90 AD3d 769, 770; see Matter of Devivo v Town of Carmel, 68
AD3d 991, 992). Here, however, claimants failed to demonstrate that
respondent had “actual knowledge of the essential facts constituting
the claim” through the police accident report, which stated that
claimant was injured after she failed to “realize” that the street
came to a dead end (Wencek v County of Chautauqua, 132 AD2d 950, 951;
see Washington v City of New York, 72 NY2d 881, 883; cf. Innes v
County of Genesee, 99 AD2d 642, 643, affd 62 NY2d 779). Furthermore,
“[t]he fact that [respondent’s Police Department] had knowledge of
this incident, without more, cannot be considered actual knowledge of
the claim against [respondent]” (Matter of Mitchell v Town of
Greenburgh, 96 AD3d 852, 852-853; see generally Williams v Town of
Irondequoit, 59 AD2d 1049, 1050).
Finally, although we agree with claimants that respondent “failed
to substantiate [its] conclusory assertions that [it was]
substantially prejudiced by the [13-month] delay” (Terrigino v Village
of Brockport, 88 AD3d 1288, 1288 [internal quotation marks omitted]),
we nevertheless conclude that the court properly denied claimants’
application inasmuch as they failed to present a reasonable excuse for
the delay and respondent lacked timely knowledge of the facts
constituting the claim (see Santana, 2 AD3d at 1304-1305).
Entered: November 9, 2012 Frances E. Cafarell
Clerk of the Court