Opinion
No. 2023-04006 Index No. 727268/22
08-07-2024
In the Matter of Daniel Crowder, Appellant, v. New York City School Construction Authority, et al., Respondents.
Cannata, Hendele & Cannata, LLP, New York, NY (Alison Cannata Hendele of counsel), for appellant. Cullen and Dykman LLP, New York, NY (Won J. Sohng of counsel), for respondents.
Cannata, Hendele & Cannata, LLP, New York, NY (Alison Cannata Hendele of counsel), for appellant.
Cullen and Dykman LLP, New York, NY (Won J. Sohng of counsel), for respondents.
VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.
DECISION & ORDER
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the petitioner appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered April 11, 2023. The order denied the petition and dismissed the proceeding.
ORDERED that the order is affirmed, with costs.
The petitioner allegedly was injured in the course of his employment while demolishing a wall at a public school in Queens County. The petitioner subsequently commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim upon the respondents or to deem a late notice of claim timely served nunc pro tunc. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.
General Municipal Law § 50-e(1)(a) provides that in any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action against a public corporation, the notice of claim shall comply with and be served in accordance with the provisions of General Municipal Law § 50-e within 90 days after the claim arises. General Municipal Law § 50-e(5) provides that the court, in its discretion, may extend the time to serve a notice of claim. 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 the time specified in General Municipal Law § 50-e(1) or within a reasonable time thereafter (see Matter of Anghel v Town of Hempstead, 223 A.D.3d 901, 902). The court shall also consider all other relevant facts and circumstances, including whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits and whether the petitioner had a reasonable excuse for the failure to serve a timely notice of claim (see id.). While the presence or the absence of any one of the factors is not necessarily determinative, whether the public corporation had actual knowledge of the essential facts constituting the claim is of great importance (see id.; Lobos v City of New York, 219 A.D.3d 720, 721; Matter of Pil-Yong Yoo v County of Suffolk, 215 A.D.3d 852, 854).
Here, the petitioner failed to show that the respondents had actual knowledge of the facts underlying the legal theories on which liability was predicated in the notice of claim (see generally Lobos v City of New York, 219 A.D.3d at 721; Matter of Charles v County of Orange, N.Y., 164 A.D.3d 1232, 1233). The petitioner also failed to meet his initial burden of showing that the late notice would not substantially prejudice the respondents, as he failed to present evidence or a plausible argument supporting a finding of no substantial prejudice (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466-467; N.F. v City of New York, 161 A.D.3d 1046, 1048).
In addition, the petitioner failed to establish that he had a reasonable excuse for his delay in serving a timely notice of claim. The petitioner provided no medical records or other supporting evidence to establish that his injuries prevented him from complying with the 90-day deadline to serve a notice of claim (see Matter of Fernandez v City of New York, 131 A.D.3d 532, 533; Matter of Minkowicz v City of New York, 100 A.D.3d 1000, 1000). Thus, the petitioner failed to demonstrate that he was incapacitated to such an extent that he could not have complied with that deadline (see Matter of Dutra v City of New York, 224 A.D.3d 682, 683).
Accordingly, the Supreme Court providently exercised its discretion in denying the petition for leave to serve a late notice of claim or to deem the notice of claim timely served nunc pro tunc and dismissing the proceeding (see Matter of Nadler v City of New York, 166 A.D.3d 618).
BRATHWAITE NELSON, J.P., MILLER, FORD and VOUTSINAS, JJ., concur.