Lewis v. Northpole Fire Co.

Appeal from an order of the Supreme Court, Jefferson County (Hugh A. Gilbert, J.), entered September 3, 2003. The order denied plaintiffs’ application for leave to serve a late notice of claim. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court did not abuse its discretion when it denied plaintiffs’ application for leave to serve a late notice of claim. The record fails to establish that defendants had timely notice of any injuries or damages claimed by plaintiffs beyond mere notice of the underlying occurrence (see Santana v Western Regional Off-Track Betting Corp., 2 AD3d 1304, 1305 [2003], lv denied 2 NY3d 704 [2004]). Additionally, plaintiffs delayed until the day before the expiration of the applicable one-year and 90-day period before seeking relief under General Municipal Law § 50-e (5) and failed to offer a reasonable excuse for the delay, notwithstanding that plaintiffs could have had knowledge through the police report of the status of the other driver as a volunteer firefighter responding to a call (see Shapiro v Town of Clarkstown, 238 AD2d 498, 499 [1997], lv denied 90 NY2d 807 [1997]). Moreover, defendants established that they would be prejudiced by plaintiffs’ delay because it prevented them from promptly obtaining witness statements [912] (see Santana, 2 AD3d at 1305). Present—Green, J.P., Kehoe, Martoche and Hayes, JJ.