Opinion
No. 2021-01852 Index No. 613899/19
06-29-2022
In the Matter of Matthew Gabriel, appellant, v. City of Long Beach, et al., respondents.
Camacho Mauro Mulholland, LLP, New York, NY (Anthony J. Buono of counsel), for appellant. Vigorito, Barker, Patterson, Nichols & Porter, LLP, Valhalla, NY (Leilani J. Rodriguez of counsel), for respondents.
Camacho Mauro Mulholland, LLP, New York, NY (Anthony J. Buono of counsel), for appellant.
Vigorito, Barker, Patterson, Nichols & Porter, LLP, Valhalla, NY (Leilani J. Rodriguez of counsel), for respondents.
FRANCESCA E. CONNOLLY, J.P. SHERI S. ROMAN LINDA CHRISTOPHER WILLIAM G. FORD, 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, Nassau County (Roy S. Mahon, J.), entered March 8, 2021. The order denied the petition and, in effect, dismissed the proceeding.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, that branch of the petition which was to deem a late notice of claim timely served nunc pro tunc is granted, and that branch of the petition which was for leave to serve a late notice of claim is denied as academic.
On June 30, 2019, employees of the City of Long Beach Fire Department (hereinafter the Fire Department) responded to a phone call from a bystander with regard to the petitioner herein, who apparently had just passed out inside of a gas station. The Fire Department employees treated the petitioner, allegedly causing him to go into anaphylactic shock, which in turn necessitated that he be placed in a medically induced coma from June 30, 2019, until July 7, 2019.
On October 3, 2019, the petitioner served a notice of claim upon the City of Long Beach and the Fire Department with regard to the subject incident. Thereafter, by notice of petition and petition filed October 4, 2019, the petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim or to deem the late notice of claim timely served nunc pro tunc. In orders dated February 27, 2020, and June 2, 2020, the Supreme Court denied the petition without prejudice to renew upon proper papers.
On June 9, 2020, the petitioner renewed his petition for leave to serve a late notice of claim or to deem the late notice of claim timely served nunc pro tunc. The respondents opposed the petition. In an order entered March 8, 2021, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.
In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court is required to consider all relevant facts and circumstances, including 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, whether the claimant has a reasonable excuse for the failure to timely serve a notice of claim, and whether the delay would substantially prejudice the public corporation in maintaining its defense (see id.; Matter of Tejada v City of New York, 161 A.D.3d 876, 877; Matter of Davis v County of Westchester, 78 A.D.3d 698, 699). "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" (Matter of Tejada v City of New York, 161 A.D.3d at 877 [citation omitted]; see Matter of Davis v County of Westchester, 78 A.D.3d at 699). Moreover, a petitioner's lack of a reasonable excuse for the failure to timely serve a notice of claim is not necessarily fatal when weighed against other relevant factors (see Matter of Tejada v City of New York, 161 A.D.3d at 877; Matter of Davis v County of Westchester, 78 A.D.3d at 699).
Here, the petitioner served the notice of claim upon the respondents five days after the 90-day period for service had expired and commenced the instant proceeding the next day. Under such circumstances, the respondents acquired actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the 90-day statutory period (see Matter of Regan v City of New York, 131 A.D.3d 1064, 1066; Matter of Gershanow v Town of Clarkstown, 88 A.D.3d 879, 880; Matter of Gelish v Dix Hills Water Dist., 58 A.D.3d 841, 842; cf. Matter of Bhargava v City of New York, 130 A.D.3d 819, 820-821; Matter of Sanchez v City of New York, 116 A.D.3d 703, 704). Since the respondents acquired timely knowledge of the essential facts constituting the petitioner's claim, the petitioner met his initial burden of showing a lack of prejudice (see Matter of Regan v City of New York, 131 A.D.3d at 1066; Jordan v City of New York, 41 A.D.3d 658, 660).
In opposition to the petitioner's initial showing, the respondents "failed to come forward with particularized evidence showing that the late notice had substantially prejudiced [their] ability to defend the claim on the merits" (Matter of Tejada v City of New York, 161 A.D.3d at 878). Rather, the respondents' counsel made only conclusory assertions that the petitioner's five-day delay in serving the notice of claim had hindered the respondents' ability to conduct a prompt and thorough investigation of the subject incident, which "were insufficient to rebut the petitioner's initial showing of lack of prejudice" (id.; see Matter of Newcomb v Middle County Cent. Sch. Dist., 28 N.Y.3d 455, 467; see also Matter of Regan v City of New York, 131 A.D.3d at 1066; Jordan v City of New York, 41 A.D.3d at 660).
Although the petitioner failed to offer a reasonable excuse for his failure to timely serve the notice of claim, "the absence of a reasonable excuse is not fatal to the petition where there was actual notice and absence of prejudice" (Matter of Regan v City of New York, 131 A.D.3d at 1066; see Matter of Brownstein v Incorporated Vil. of Hempstead, 52 A.D.3d 507, 510; Gibbs v City of New York, 22 A.D.3d 717, 720; cf. Matter of Hampson v Connetquot Cent. Sch. Dist., 114 A.D.3d 790, 791-792; Matter of Bell v City of New York, 100 A.D.3d 990, 990-991).
Accordingly, the Supreme Court improvidently exercised its discretion in denying the petition.
CONNOLLY, J.P., ROMAN, CHRISTOPHER and FORD, JJ., concur.