Opinion
2018–04839 Index No. 85267/17
08-28-2019
In the Matter of Susan MISKIN, Appellant, v. CITY OF NEW YORK, Respondent.
Howard M. File, Staten Island, N.Y. (Martin Rubenstein of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Dona B. Morris of counsel), for respondent.
Howard M. File, Staten Island, N.Y. (Martin Rubenstein of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Dona B. Morris of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
On October 6, 2016, the petitioner, a speech therapist employed by the New York City Department of Education (hereinafter the DOE), allegedly was injured when she slipped and fell while walking on a paved roadway located in front of the Susan Wagner High School Performing Arts Center in Staten Island. By order to show cause dated December 26, 2017, 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, in effect, dismissed the proceeding. The petitioner appeals.
In determining whether to grant a petition for leave to serve a late notice of claim, a court must consider all relevant facts and circumstances, including whether the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, whether 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, and whether the delay would substantially prejudice the public corporation in its defense (see General Municipal Law § 50–e[5] ; Constantino v. City of New York , 165 A.D.3d 1225, 1225–1226, 87 N.Y.S.3d 612 ; Matter of Ashkenazie v. City of New York , 165 A.D.3d 785, 85 N.Y.S.3d 508 ; Kelly v. City of New York , 153 A.D.3d 1388, 1388–1389, 63 N.Y.S.3d 385 ). "The presence or absence of any one factor is not necessarily determinative, but whether the public corporation had actual knowledge of the essential facts constituting the claim is the most important, based on its placement in the statute and its relation to other relevant factors" ( Matter of Quinones v. City of New York , 160 A.D.3d 874, 876, 74 N.Y.S.3d 602 [internal quotation marks omitted]; see Horn v. Bellmore Union Free Sch. Dist. , 139 A.D.3d 1006, 1007, 32 N.Y.S.3d 289 ).
Here, the petitioner 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 McClancy v. Plainedge Union Free Sch. Dist. , 153 A.D.3d 1413, 1414–1415, 62 N.Y.S.3d 126 ; Horn v. Bellmore Union Free Sch. Dist. , 139 A.D.3d at 1007, 32 N.Y.S.3d 289 ). The petitioner's filing of an injury report with the New York City Board of Education, as well as applications for sick leave with the DOE—both of which are entities that are separate and distinct from the City (see Tanaysha T. v. City of New York , 130 A.D.3d 916, 917, 12 N.Y.S.3d 908 ; McClain v. City of New York , 65 A.D.3d 1020, 884 N.Y.S.2d 865 ; Matter of Ealey v. City of New York , 204 A.D.2d 720, 721, 612 N.Y.S.2d 445 )—did not provide actual notice of the facts constituting the petitioner's claim that she slipped and fell on "loose paving debris" as a result of the City's negligence. The injury report merely indicated that the petitioner fell after stepping on "rock/tar rock" and made no reference to the claims listed in the proposed notice of claim, inter alia, that the City was negligent in creating a dangerous condition (see Matter of Bermudez v. City of New York , 167 A.D.3d 733, 734, 89 N.Y.S.3d 289 ; Matter of Zelin v. Blind Brook–Rye Union Free Sch. Dist. , 164 A.D.3d 1352, 1353–1354, 84 N.Y.S.3d 252 ; Matter of Naar v. City of New York , 161 A.D.3d 1081, 1083, 77 N.Y.S.3d 706 ; Matter of Quinones v. City of New York , 160 A.D.3d at 876, 74 N.Y.S.3d 602 ; Matter of Maldonado v. City of New York , 152 A.D.3d 522, 523, 58 N.Y.S.3d 506 ).
Furthermore, the petitioner did not demonstrate a reasonable excuse for the failure to serve a timely notice of claim. The petitioner's failure to ascertain that the City was responsible for paving and maintaining the subject roadway was attributable to a lack of due diligence in investigating the matter, which is an unacceptable excuse (see Constantino v. City of New York , 165 A.D.3d at 1226, 87 N.Y.S.3d 612 ; Matter of Quinones v. City of New York , 160 A.D.3d at 876, 74 N.Y.S.3d 602 ; Kelly v. City of New York , 153 A.D.3d at 1389, 63 N.Y.S.3d 385 ). Moreover, given the transitory nature of the defect upon which the petitioner allegedly fell and her delay of nearly one year in serving a notice of claim upon the City, the petitioner failed to sustain her initial burden of presenting "some evidence or plausible argument" that granting the petition would not substantially prejudice the City in defending on the merits ( Matter of Newcomb v. Middle Country Cent. Sch. Dist. , 28 N.Y.3d 455, 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; see Matter of Ashkenazie v. City of New York , 165 A.D.3d at 787, 85 N.Y.S.3d 508 ; Matter of Cuccia v. Metropolitan Transp. Auth. , 150 A.D.3d 849, 850, 55 N.Y.S.3d 83 ; see also Matter of Lawhorne v. City of New York , 133 A.D.3d 856, 857, 20 N.Y.S.3d 155 ; Matter of Sanchez v. City of New York , 116 A.D.3d 703, 704, 983 N.Y.S.2d 303 ),
Accordingly, the Supreme Court providently exercised its discretion in denying the petition for leave to serve a late notice of claim.
SCHEINKMAN, P.J., RIVERA, COHEN and HINDS–RADIX, JJ., concur.