Opinion
No. 2022-01883 Index No. 513617/21
08-07-2024
In the Matter of Ellen Mandelbaum, Appellant, v. City of New York, Respondent.
Richard Paul Stone, New York, NY, for appellant. Muriel Goode-Trufant, Acting Corporation Counsel, New York, NY (Jane L. Gordon and Elizabeth I. Freedman of counsel), for respondent
Richard Paul Stone, New York, NY, for appellant.
Muriel Goode-Trufant, Acting Corporation Counsel, New York, NY (Jane L. Gordon and Elizabeth I. Freedman of counsel), for respondent
BETSY BARROS, J.P., JOSEPH J. MALTESE, BARRY E. WARHIT, CARL J. LANDICINO, 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, Kings County (Gina Abadi, J.), dated February 4, 2022. The order denied the petition and dismissed the proceeding.
ORDERED that the order is affirmed, with costs.
On October 31, 2020, the petitioner was walking on the Riegelmann Boardwalk in Brooklyn when she allegedly tripped on protruding nails. The petitioner was taken to a hospital where she underwent surgery for her injuries and, due to complications, was transferred between the hospital and a rehabilitation facility several times before finally being discharged to a nursing center on December 28, 2020. The petitioner retained counsel on March 30, 2021, and served a notice of claim upon the City of New York without leave of court on April 21, 2021. This notice of claim was rejected on April 22, 2021. In June 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. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.
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 General Municipal Law § 50-e[1][a]; Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460). "'In determining whether to grant a petition for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider all relevant circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits'" (Lobos v City of New York, 219 A.D.3d 720, 721, quoting Matter of Brown v City of New York, 202 A.D.3d 783, 783; see General Municipal Law § 50-e[5]). "'While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance'" (Lobos v City of New York, 219 A.D.3d at 721, quoting Matter of Mohamed v New York City, 139 A.D.3d 858, 858).
Here, the petitioner's initial delay in serving a notice of claim upon the City was reasonable, as she provided evidence that she was incapacitated until March 2021 (see Matter of Salazar v City of New York, 212 A.D.3d 633, 634; Matter of Olsen v County of Nassau, 14 A.D.3d 706, 707). However, the petitioner failed to demonstrate a reasonable excuse for the additional delay between the time she retained counsel and the time she commenced this proceeding for leave to serve a late notice of claim (see Matter of Salazar v City of New York, 212 A.D.3d at 634-635; see generally Matter of Naar v City of New York, 161 A.D.3d 1081, 1083).
Contrary to the petitioner's contention, the evidence submitted in support of the petition failed to establish that the City acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter (see Matter of Vincent v City of New York, 208 A.D.3d 589, 590; Matter of Suraty v City of New York, 188 A.D.3d 702, 703).
In addition, the petitioner failed to satisfy her 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 467-468; Matter of Salazar v City of New York, 212 A.D.3d at 635).
Accordingly, the Supreme Court providently exercised its discretion in denying the petition for leave to serve a late notice of claim upon the City and dismissing the proceeding.
BARROS, J.P., MALTESE, WARHIT and LANDICINO, JJ., concur.