Franco v. Town of Cairo

Rose, J. (dissenting).

I respectfully dissent. I cannot agree with the majority that petitioner sufficiently established that respondents acquired actual knowledge of the essential facts of the claim within 90 days of the accident. Although a Town of Cairo police officer responded to the scene and generated a police accident report, the content of that report is vague and ambiguous in describing the location of the accident, indicating that petitioner fell “on the ground due to ice that was built up along the sidewalk at the entrance of the driveway” to a private real estate office. It does not say that she fell on the sidewalk or *802that the ice was built up on the sidewalk. In short, the police report does not put respondent Town of Cairo on notice of petitioner’s claim that negligent maintenance of the Town’s sidewalk caused her to fall (see Kirtley v Albany County Airport Auth., 67 AD3d 1317, 1318-1319 [2009]; Matter of Curiel v Town of Thurman, 289 AD2d 737, 738 [2001], lv denied 97 NY2d 611 [2002]; Matter of Leiblein v Clark, 207 AD2d 348, 350 [1994]). The letter sent by petitioner’s attorney to the Cairo Public Library is also insufficient to provide notice as it only mentions the accident date but gives no indication of the location, manner or cause of the accident. Nor does it offer any clarification or amplification to the police report. Instead, it confuses the issue of where this accident occurred by implying that it occurred at the Library. Furthermore, there is no indication of any connection between the Library and the Town.

Matter of Dewey v Town of Colonie (54 AD3d 1142 [2008]), relied upon by the majority, is distinguishable. The municipality in that case had actual knowledge of the claim based on a police accident report containing sufficient detail of the essential facts of the claim as well as Freedom of Information Law requests made by the petitioners and their attorneys to the municipality’s police department and its attorney {id. at 1143). Here, there is only an ambiguous police accident report and a letter to the Library that does not include any detail about the accident.

Also, there is no evidence that respondent County of Greene acquired actual knowledge of the essential facts of the claim. The mere presence of a County medic at the scene of the accident is insufficient to satisfy the requirement of actual knowledge {see General Municipal Law § 50-e [5]; Matter of Crocco v Town of New Scotland, 307 AD2d 516, 517 [2003]). Nor is there any indication in the record that the medic generated a report that would put the County on notice of the accident, its cause or any basis upon which the County could be said to be negligent.

Given the lack of evidence that respondents had knowledge of the essential facts of the claim within 90 days, and petitioner’s lack of any reasonable excuse for the delay in filing a notice of claim, I can find no abuse of discretion in Supreme Court’s denial of the application to file a late notice of claim and, accordingly, would affirm the order {see Matter of Devivo v Town of Carmel, 68 AD3d 991, 992 [2009]; Matter of Jensen v City of Saratoga Springs, 203 AD2d 863, 864-865 [1994]; Caselli v City of New York, 105 AD2d 251, 260 [1984]).

Ordered that the order is reversed, on the law, with costs, and application granted.