Appellate Division of the Supreme Court of New York, 2003

Lodati v. City of New York

Appellate Division of the Supreme Court of New York · Decided March 3, 2003

303 A.D.2d 406; 755 N.Y.S.2d 853

Cases that cite this one

30 later published cases cite this decision. The 25 that cite it most often are listed here.

Kellman v. Hauppauge Union Free School District (Appellate Division of the Supreme Court of New York 2014)
Brownstein v. Incorporated Village of Hempstead (Appellate Division of the Supreme Court of New York 2008)
Paige Leeds v. Port Washington Union Free School District (Appellate Division of the Supreme Court of New York 2008)
Matter of Galicia v. City of New York (Appellate Division of the Supreme Court of New York 2019)
Matter of Ramirez v. City of New York (Appellate Division of the Supreme Court of New York 2017)
Matter of Hamilton v. City of New York (Appellate Division of the Supreme Court of New York 2016)
Matter of Murray v. County of Suffolk (Appellate Division of the Supreme Court of New York 2015)
Matter of Regan v. City of New York (Appellate Division of the Supreme Court of New York 2015)
Matter of Abdul v. City of New York (Appellate Division of the Supreme Court of New York 2015)
Matter of R. A. v. City of New York (Appellate Division of the Supreme Court of New York 2015)
Walker v. Riverhead Central School District (Appellate Division of the Supreme Court of New York 2013)
Walker v. Riverhead Central School District (Appellate Division of the Supreme Court of New York 2013)
Sparrow v. Hewlett-Woodmere Union Free School District (Appellate Division of the Supreme Court of New York 2013)
Sparrow v. Hewlett-Woodmere Union Free School District (Appellate Division of the Supreme Court of New York 2013)
Wright v. City of New York (Appellate Division of the Supreme Court of New York 2012)
Wright v. City of New York (Appellate Division of the Supreme Court of New York 2012)
Hernandez v. County of Suffolk (Appellate Division of the Supreme Court of New York 2011)
Godfrey v. City of New Rochelle (Appellate Division of the Supreme Court of New York 2010)
Werner v. Nyack Union Free School District (Appellate Division of the Supreme Court of New York 2010)
Grant v. Nassau County Industrial Development Agency (Appellate Division of the Supreme Court of New York 2009)
Riccio v. Town of Eastchester (Appellate Division of the Supreme Court of New York 2009)
Catterson v. Suffolk County Department of Health Services (Appellate Division of the Supreme Court of New York 2008)
Felice v. Eastport/South Manor Central School District (Appellate Division of the Supreme Court of New York 2008)
Burgess v. County of Suffolk (Appellate Division of the Supreme Court of New York 2008)
Jordan v. City of New York (Appellate Division of the Supreme Court of New York 2007)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

—In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Queens County (LaTorella, J.), dated December 14, 2001, which denied the petition.

Ordered that the order is affirmed, with costs.

It is well settled that the determination as to whether to *407grant leave to serve a late notice of claim lies within the sound discretion of the Supreme Court (see General Municipal Law § 50-e [5]). The key factors which the court must consider are whether the movant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense (see Matter of Valestil v City of New York, 295 AD2d 619 [2002], lv denied 98 NY2d 615 [2002]; Matter of Kittredge v New York City Hous. Auth., 275 AD2d 746 [2000]). The petitioner’s excuse for failing to serve a timely notice of claim, that he was unaware of the severity of his right shoulder injury until approximately six months after the accident, is unacceptable without supporting medical evidence explaining why the injury took so long to become apparent and be diagnosed (see Matter of Eaddy v County of Nassau, 282 AD2d 675 [2001]; Lefkowitz v City of New York, 272 AD2d 56 [2000]). Nor was admissible medical support proffered to verify that another six-month delay was due to mental incapacity (see Giordano v New York City Hous. Auth., 128 AD2d 671 [1987]; cf. Barnes v County of Onondaga, 65 NY2d 664 [1985]).

The petitioner’s contention that the respondents had actual knowledge of the facts essential to the claim within the 90-day period after the claim arose is unsupported by the record (see Matter of Valestil v City of New York, supra). Under the circumstances of this case, the respondents would be prejudiced in their defense by the delay between the time the claim arose and the time the petitioner commenced the proceeding for leave to serve a late notice of claim (see Matter of Kittredge v New York City Hous. Auth., supra; Matter of Guiliano v Town of Oyster Bay, 244 AD2d 408 [1997]).

Accordingly, the Supreme Court providently exercised its discretion in denying the petitioner’s application. Ritter, J.P., McGinity, Townes and Mastro, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.