Opinion
2017–09965 Index No. 502757/17
10-10-2018
In the Matter of Yolanda ASHKENAZIE, appellant, v. CITY OF NEW YORK, et al., respondents.
Stefano A. Filippazzo, P.C., Brooklyn, N.Y. (Louis A. Badolato of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Deborah A. Brenner and Julie Steiner of counsel), for respondents.
Stefano A. Filippazzo, P.C., Brooklyn, N.Y. (Louis A. Badolato of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Deborah A. Brenner and Julie Steiner of counsel), for respondents.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SYLVIA O. HINDS–RADIX, ANGELA G. IANNACCI, 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 (Reginald A. Boddie, J.), dated August 4, 2017. The order denied the petition.
ORDERED that the order is affirmed, with costs.
The petitioner allegedly was injured when she fell on a sidewalk defect in Brooklyn. She subsequently served a notice of claim on the respondents beyond the 90–day statutory period (see General Municipal Law § 50–e[1][a] ), and the respondents rejected the notice of claim and disallowed her claim based on the untimely service. More than nine months after the rejection, the petitioner commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim. The Supreme Court denied the petition, and the petitioner appeals.
Timely service of a notice of claim is a condition precedent to a lawsuit sounding in tort against a municipal entity (see Matter of Ruiz v. City of New York, 154 A.D.3d 945, 946, 63 N.Y.S.3d 425 ; Matter of Zaid v. City of New York, 87 A.D.3d 661, 662, 928 N.Y.S.2d 579 ). Pursuant to General Municipal Law § 50–e(5), 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 (see Matter of D'Agostino v. City of New York, 146 A.D.3d 880, 46 N.Y.S.3d 635 ; Ramirez v. City of New York, 139 A.D.3d 695, 32 N.Y.S.3d 201 ). Neither the presence nor absence of any one factor is determinative, although it is generally recognized that the question of whether the municipality timely acquired actual knowledge is of great importance (see Matter of Jaffier v. City of New York, 148 A.D.3d 1021, 1022, 51 N.Y.S.3d 108 ; Matter of Corwin v. City of New York, 141 A.D.3d 484, 489, 36 N.Y.S.3d 118 ; Matter of Lawhorne v. City of New York, 133 A.D.3d 856, 20 N.Y.S.3d 155 ). An application for leave to serve a late notice of claim is addressed to the sound discretion of the trial court (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 465, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; Matter of Ruiz v. City of New York, 154 A.D.3d at 946, 63 N.Y.S.3d 425 ; Matter of Bitetto v. City of Yonkers, 13 A.D.3d 367, 368, 785 N.Y.S.2d 745 ).
Contrary to the petitioner's contention, she failed to demonstrate that her injuries and medical care constituted a reasonable excuse for her failure to timely serve a notice of claim. Rather, the medical evidence she submitted in support of her petition demonstrated that she had substantially healed and no longer required any pain medication long before the expiration of the statutory 90–day period for timely filing her notice of claim. Thus, she failed to medically substantiate that her injury and treatment prevented her from making timely service, or that she did not learn of the full extent of her injuries until after the statutory period had expired (see Matter of Cuccia v. Metropolitan Transp. Auth., 150 A.D.3d 849, 850, 55 N.Y.S.3d 83 ; Matter of Klass v. City of New York, 103 A.D.3d 800, 801, 959 N.Y.S.2d 738 ; Matter of Scolo v. Central Islip Union Free School Dist., 40 A.D.3d 1104, 1106, 838 N.Y.S.2d 577 ). Furthermore, the petitioner failed to establish any reasonable excuse for her additional nine-month delay in seeking leave to serve a late notice of claim after her original notice of claim was rejected as untimely (see Kelly v. City of New York, 153 A.D.3d 1388, 63 N.Y.S.3d 385 ; Matter of Sanchez v. City of New York, 116 A.D.3d 703, 703–704, 983 N.Y.S.2d 303 ).
Similarly, we agree with the Supreme Court's determination that the respondents did not acquire actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter by reason of the late notice of claim which the respondents rejected as untimely. "A late notice of claim served without leave of court is a nullity" ( Chtchannikova v. City of New York, 138 A.D.3d 908, 909, 30 N.Y.S.3d 233 ; see Mosheyev v. New York City Dept. of Educ., 144 A.D.3d 645, 646, 39 N.Y.S.3d 832 ; Cassidy v. Riverhead Cent. Sch. Dist., 128 A.D.3d 996, 997, 11 N.Y.S.3d 102 ). Under the circumstances presented, where the respondents rejected the notice of claim and disallowed the claim based on the untimely service, the petitioner's late notice of claim did not provide the respondents with actual knowledge (see Matter of Katsiouras v. City of New York, 106 A.D.3d 916, 918, 965 N.Y.S.2d 533 ; Mack v. City of New York, 265 A.D.2d 308, 309, 696 N.Y.S.2d 206 ; cf. Matter of Cruz v. City of New York, 149 A.D.3d 835, 836, 52 N.Y.S.3d 380 ; Brunson v. New York City Health & Hosps. Corp., 144 A.D.3d 854, 855–856, 42 N.Y.S.3d 34 ).
Additionally, given the transitory nature of the defect upon which the petitioner allegedly fell (see Ramirez v. City of New York, 139 A.D.3d at 696, 32 N.Y.S.3d 201 ; Matter of Lawhorne v. City of New York, 133 A.D.3d at 857, 20 N.Y.S.3d 155 ; Matter of Papayannakos v. Levittown Mem. Special Educ. Ctr., 38 A.D.3d 902, 903, 834 N.Y.S.2d 214 ; Matter of Turner v. Town of Oyster Bay, 268 A.D.2d 526, 527, 701 N.Y.S.2d 653 ), she failed to sustain her initial burden of presenting "some evidence or plausible argument" ( Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ) that granting the petition would not substantially prejudice the respondents in maintaining their defense on the merits (see e.g. Kelly v. City of New York, 153 A.D.3d 1388, 63 N.Y.S.3d 385 ; Matter of Cuccia v. Metropolitan Transp. Auth., 150 A.D.3d at 850, 55 N.Y.S.3d 83 ; Matter of D'Agostino v. City of New York, 146 A.D.3d at 882, 46 N.Y.S.3d 635 ).
Accordingly, the Supreme Court providently exercised its discretion in denying the petition for leave to serve a late notice of claim.
MASTRO, J.P., BALKIN, HINDS–RADIX and IANNACCI, JJ., concur.