Upon the foregoing papers, petitioner's motion for leave to serve a late notice of claim upon respondent the City of new York is denied.

As alleged in her moving affidavit, petitioner, a bus driver for Access-A-Ride, was injured on November 8, 2012 at approximately 9:37 a.m., when she slipped on snow at an Access-A-Ride bust stop in front of 1550 Richmond Avenue on Staten Island, causing damage to her left knee. Unable to work, she was eventually diagnosed with a torn meniscus requiring surgical repair, which took place on February 22, 2013. Purportedly, still suffering from pain in her left knee, petitioner [*2]saw an orthopedist, Dr. Joseph Giovinazzo, on August 14, 2013, at which point it is claimed that she was informed of the need for a left knee replacement. Allegedly realizing for the first time the severity of the injury she sustained on November 5, 2012, petitioner contacted an attorney on August 16, 2013, who filed an order to show cause on her behalf requesting leave to serve a late notice of claim on the City on or about August 20, 2013. It is claimed that a belated notice of claim was subsequently served upon the City on August 26, 2013, i.e., more than six months after the expiration, on February 6, 2012, of the 90-day period within which a notice of claim is required to be filed pursuant to General Municipal Law § 50-e(10(a) (see Petitioner's Exhibit "A"). The nature of the claim as stated in petitioner's belated notice is set forth as follows:

Negligent snow removal at Access-A-Ride bus stop in front of 1550 Richmond Avenue, Staten Island, NY. Negligent placement of Access-A-Ride bus stop in a location which has grass instead of pavement adjacent to the curb. Negligent failure to extend sidewalk in the area of the Access-A-Ride bus stop to allow or safe ingress/egress of bus drivers and their passengers (Petitioner's Exhibit "B').

In opposition, the City argues that petitioner has failed to satisfy any of the relevant criteria for the granting of her application, citing General Municipal Law § 50-e(5). More specifically, the City maintains that petitioner failed to provide a reasonable excuse for her delay in filing; that she has offered no proof that the City acquired actual knowledge of the essential facts constituting her claim within the 90-day statutory period "or ... a reasonable time thereafter" (General Municipal Law § 50-e[5]); and that she has further failed to demonstrate that the City's ability to defend against her claim has not been "substantially prejudiced" by her failure to save a timely notice of claim (id.). Expanding upon the foregoing, the City notes with particularity petitioner's silence on the issue of its acquisition of actual knowledge of the facts constituting her claim, and her failure to provide medical documentation in support of her claimed "reasonable excuse" for her delay in filing, i.e., that it took until August of 2013 for the severity of her injury to become apparent, citing, e.g., Matter of Minkowicz v City of New York (100 AD3d 1000 [2d Dept 2012]).

In reply, petitioner argues that the City cannot show significant prejudice inasmuch as the presence of uncleared snow at the curb line where she sustained her injury was a transient hazard that clearly would not have remained in its original condition throughout the 90-day statutory period for reporting her claim. In addition, she proffers in support of her proffered "reasonable excuse" an unsigned copy of an apparent one page "office note" memorializing her visit to Dr. Giovinazzo on August 14, 2013 (Reply Affidavit, Exhibit "B"). Non-evidentiary in nature, the substance of the office note also fails to support petitioner's claim that it documents her need for knee replacement surgery. Rather, it (1) recounts her complaint of continuing pain; (2) opines that she has reached her "maximal medical improvement" and is "unable to work"; (3) notes that she is "morbidly obese"; (4) recommends a change in her pain medication (from Mobic to Celebrex); (5) advises that she return in 6 to 8 weeks for a "possible injection of cortisone or Euflexxa"; and (6) concludes with the observation that despite her weight "she should be evaluated by Dr. Hip-Flores for possible left knee replacement" (emphasis added). Of seminal importance, petitioner makes no claim of a follow-up [*3]visit with either doctor, nor any allegation or proof of a recommendation that she undergo left knee replacement surgery from anyone.

Pursuant to General Municipal Law § 50-e(5), a Court has the discretion to extend a claimant's time to serve a notice of claim, as long as the extension does not exceed the time limit for commencement of an action by the claimant against the municipality. "In determining whether to grant the extension, the Court shall consider, in particular, whether the public corporation ... acquired actual knowledge of the essential facts constituting the claim within [90 days after the claim arose] or within a reasonable time thereafter" (General Municipal Law § 50-e[5]). The Court must also consider any other relevant circumstances, including whether the claimant can demonstrate that there is a reasonable excuse for failing to timely serve the notice, whether the claimant is an infant, and whether the delay substantially prejudiced the municipality in maintaining its defense on the merits (id.; see Matter of Henriques v City of New York, 22 AD3d 847).

Here, there is no evidence that the City obtained actual knowledge of the essential facts constituting petitioner's claim until served with this motion, some ten (10) months after the events in question are alleged to have occurred. In fact, petitioner does not argue to the contrary. Although no one factor is necessarily determinative, it has come to be recognized that whether the public corporation acquired timely knowledge of the essential facts constituting the claim is a factor to be accorded "great weight" (Matter of Morris v County of Suffolk, 88 AD2d 956, affd 58 NY2d 767; see General Municipal Law § 50-e[5]; Matter of Dell'Italia v Long Is RR Corp; 31 AD3d 758, 759), and none has been demonstrated to exist in the case at bar.

Further lacking is proof of a reasonable excuse for petitioner's failure to serve a timely notice of claim. Beyond the aforementioned absence of medical evidence supportive of petitioner's inability to immediately appreciate the severity of the injury (see Matter of Minkowicz v City of New York, 100 AD3d at 1000 and cases cited thereat), the petitioner's own factual allegations suggest that she must have been aware of the meniscal tear and the need for corrective surgery in advance of the date of her operation an February 22, 2013. In fact, given her claimed inability to work for the three months immediately after the accident, it is far from fanciful to suggest that petitioner must have been aware that the injury to her knee was quite serious either prior to or shortly after February 6, 2013, the date on which the statutory 90-day period within which to file a notice of claim expired. Without attempting to second-guess the petitioner, it is clear from Dr. Giovinazzo's note that she must have presented to the orthopedist with complaints of post-surgical pain that was sufficiently debilitating to prevent her from working. At that point, the doctor apparently chose to prescribe Mobic to remediate the pain, a prescription which he later changed to Celebrex and the possibility of, e.g., cortisone injections in the future. The salient point here is that to date, there is no evidence before the Court suggesting that petitioner's physical condition on August 14, 2013 was any worse than previously diagnosed, or that any further medical intervention has been recommended, prescribed or obtained.

Under these circumstances, the failure to demonstrate "actual knowledge" and a reasonable excuse for the failure to file a timely notice of claim render it unnecessary to reach the issue of prejudice (see Matter of Dell"Italia v Long Is RR Co, 31 AD3d at 759; Matter of Carpenter v City of New York, 31 AD3d 594, 595-596). In any event, the mere fact that the presence of snow on the ground constituted a transient condition which contributed to petitioner's accident does not preclude a finding of prejudice based on the fading memories of possible eyewitnesses or the [*4]allegations of negligence arising from the more permanent factors cited in petitioner's belated notice of claim as a predicate for imposing liability on the City. As a result, were, it necessary to reach the issue, petitioner has failed to demonstrate that the City would not be substantially prejudiced by her untoward delay in both giving notice and/or moving for leave to serve a late notice of claim (see e.g. Matter of Valila v Town of Hempstead, 107 AD3d 813, 815; Matter of Minkowicz v City of New York, 100 AD3d at 1000-1001)^[FN1].

Accordingly, it is

ORDERED petitioner's motion for, inter alia, leave to serve a late notice of claim is denied in its entirety.

E N T E R,

______________________________

HON. THOMAS P. ALIOTTA

J.S.C.

Dated: November 15, 2013