Opinion
No. 2022-03443 Index No. 722246/21
02-07-2024
In the Matter of Vornen Dutra, petitioner-appellant, v. City of New York, respondent.
Gorayeb & Associates, P.C., New York, NY (John M. Shaw of counsel), for petitioner-appellant.
Gorayeb & Associates, P.C., New York, NY (John M. Shaw of counsel), for petitioner-appellant.
MARK C. DILLON, J.P. CHERYL E. CHAMBERS LARA J. GENOVESI LOURDES M. VENTURA, JJ.
DECISION & ORDER
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 (Kevin J. Kerrigan, J.), entered December 10, 2021. The order denied the petition and dismissed the proceeding.
ORDERED that the order is affirmed, without costs or disbursements.
On August 27, 2020, the petitioner allegedly was injured while working in a roadway in Queens when a stack of wood piled near the roadway fell onto him. On October 5, 2021, the petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim upon the City of New York. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.
Pursuant to General Municipal Law § 50-e(1)(a), a party seeking to sue a public corporation must serve a notice of claim on the prospective defendant within 90 days after the claim arises (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460). "In determining whether to grant leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether (1) the claimant demonstrated a reasonable excuse for failing to timely serve the notice, (2) the municipal entity acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay in seeking leave would substantially prejudice the municipal entity in its ability to defend against the action" (Matter of Salazar v City of New York, 212 A.D.3d 633, 634 [internal quotation marks omitted]; see General Municipal Law § 50-e[5]; Lobos v City of New York, 219 A.D.3d 720, 721-722; Matter of Sumi v Village of Stewart Manor, 219 A.D.3d 490, 491). "The presence or absence of any one of these factors is not dispositive" (Matter of Balbuenas v New York City Health & Hosps. Corp., 209 A.D.3d 642, 644 [internal quotation marks omitted]; see Rodriguez v Westchester Med. Ctr. [WMC], 196 A.D.3d 659, 660).
Here, the petitioner demonstrated that the period to timely serve a notice of claim was tolled by the executive orders issued during the COVID-19 pandemic, and began to run on November 4, 2020 (see Espinal v Port Auth. of N.Y. & N.J., 213 A.D.3d 101, 102; see generally Brash v Richards, 195 A.D.3d 582). However, he failed to offer a reasonable excuse for his additional eight-month delay in commencing this proceeding, following the expiration of the 90-day statutory period. The petitioner failed to demonstrate that he was incapacitated to such an extent that he could not have complied with the statutory requirement to serve a timely notice of claim (see Matter of Smith v Westchester County Health Care Corp., 165 A.D.3d 1150, 1151; Matter of Ashkenazie v City of New York, 165 A.D.3d 785, 786; Matter of Cuccia v Metropolitan Transp. Auth., 150 A.D.3d 849, 850).
Further, the evidence submitted by the petitioner did not establish that the City had actual knowledge of the essential facts constituting the claim within the requisite period or a reasonable time thereafter (see Parker v City of New York, 206 A.D.3d 936, 937; Matter of Wieman-Gibson v County of Suffolk, 206 A.D.3d 666, 667). "[T]he mere alleged existence of reports and records, without evidence of their content, is insufficient to impute actual knowledge to the City" (Parker v City of New York, 202 A.D.3d at 938; see Etienne v City of New York, 189 A.D.3d 1400, 1402).
Finally, the petitioner failed to meet his initial burden of demonstrating that the City would not be substantially prejudiced in maintaining a defense on the merits as a result of the delay (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 N.Y.3d at 466; Matter of Salazar v City of New York, 212 A.D.3d at 635; Parker v City of New York, 206 A.D.3d at 938).
Accordingly, the Supreme Court providently exercised its discretion in denying the petition and dismissing the proceeding.
DILLON, J.P., CHAMBERS, GENOVESI and VENTURA, JJ., concur.