Ma v.

5 Citing cases

  1. J.H. v. N.Y.C. Health & Hosps. Corp.

    179 A.D.3d 452 (N.Y. App. Div. 2020)   Cited 3 times

    The medical records were insufficient to impute actual knowledge to respondent, as they did not "evince that the medical staff, by its acts or omissions, inflicted any injury on [petitioner]" (seeWally G. , 27 N.Y.3d at 677, 37 N.Y.S.3d 30, 57 N.E.3d 1067 ). Even if petitioner's untimely and unauthorized June 2014 notice of claim was sufficient to provide such actual knowledge to respondent, the 11–month delay between the expiration of the 90–day notice of claim period in July 2013 and the service of this notice in June 2014 was not reasonable (seeMatter of Shun Mao Ma v. New York City Health & Hosps. Corp. , 153 A.D.3d 529, 530–531, 59 N.Y.S.3d 478 [2d Dept. 2017] ).Petitioner failed to establish that the delay in serving a notice of claim or seeking leave to serve a late notice of claim was the product of the infant's health issues (seeMatter of Nieves v. New York Health & Hosps. Corp. , 34 A.D.3d 336, 337, 825 N.Y.S.2d 40 [1st Dept. 2006] ).

  2. Coronel v. N.J. Transit Corp.

    173 A.D.3d 828 (N.Y. App. Div. 2019)   Cited 3 times

    Although a police accident report was prepared regarding the subject motor vehicle accident, the report, which stated that no one was injured in the accident, did not provide the defendants with actual knowledge of the essential facts constituting the plaintiff's claim to recover damages for personal injuries (see Matter ofFarfan v. City of New York, 101 A.D.3d 714, 715, 955 N.Y.S.2d 365 ; Matter ofNational Grange Mut. Ins. Co. v. Town of Eastchester, 48 A.D.3d 467, 468, 851 N.Y.S.2d 632 ). The plaintiff also did not demonstrate a reasonable excuse for the failure to timely serve a notice of claim and for the delay in moving for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc (seeMatter of Shun Mao Ma v. New York City Health & Hosps. Corp., 153 A.D.3d 529, 530, 59 N.Y.S.3d 478 ; Matter ofSmith v. Baldwin Union Free School Dist., 63 A.D.3d 1078, 1079, 881 N.Y.S.2d 488 ). In addition, the plaintiff failed to satisfy his initial burden of showing that the defendants would not be substantially prejudiced in maintaining a defense on the merits as a result of the delay (seeMatter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 467–468, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; Matter of D.M. v. Center Moriches Union Free Sch. Dist., 151 A.D.3d 970, 972–973, 54 N.Y.S.3d 161 ; Hudson v. Patel, 146 A.D.3d at 760, 45 N.Y.S.3d 497 ).

  3. Johnson v. Cnty. of Suffolk

    167 A.D.3d 742 (N.Y. App. Div. 2018)   Cited 28 times

    he late notice, and the Town failed to make a "particularized showing" of substantial prejudice ( Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 467, 45 N.Y.S.3d 895, 68 N.E.3d 714 ), the presence or absence of any one factor is not necessarily determinative in deciding whether permission to serve a late notice of claim should be granted (see Matter of Jaffier v. City of New York, 148 A.D.3d at 1022, 51 N.Y.S.3d 108 ; Matter of Joy v. County of Suffolk, 89 A.D.3d at 1027, 933 N.Y.S.2d 369 ).A balancing of the relevant factors (see General Municipal Law § 50–e[5] ) demonstrates that the Supreme Court improvidently exercised its discretion in granting that branch of the petition which was for leave to serve a late notice of claim on behalf of the child against the Town to assert as a theory of liability that a Town park ranger waved to the family to cross the highway (seeMatter of McClancy v. Plainedge Union Free Sch. Dist., 153 A.D.3d 1413, 1416, 62 N.Y.S.3d 126 ; Matter of Shun Mao Ma v. New York City Health & Hosps. Corp., 153 A.D.3d 529, 531, 59 N.Y.S.3d 478 ).Accordingly, the Supreme Court should have denied those branches of the petition which were for leave to amend the notice of claim against the Town of Babylon and for leave to serve a late notice of claim against the Town of Babylon.

  4. Tejada v. City of N.Y.

    161 A.D.3d 876 (N.Y. App. Div. 2018)   Cited 20 times

    The petitioner appeals. In determining whether to deem a late notice of claim timely served nunc pro tunc, the court must consider several factors, including whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim accrued or within a reasonable time thereafter, whether the delay would substantially prejudice the public corporation in maintaining its defense, and whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim and for the delay in seeking leave to serve a late notice of claim (see General Municipal Law § 50–e[5] ; Matter of Shun Mao Ma v. New York City Health & Hosps. Corp., 153 A.D.3d 529, 530, 59 N.Y.S.3d 478 ; Matter of Devivo v. Town of Carmel , 68 A.D.3d 991, 992, 891 N.Y.S.2d 154 ; Matter of Felice v. Eastport/South Manor Cent. School Dist. , 50 A.D.3d 138, 139, 851 N.Y.S.2d 218 ). While the presence or the absence of any one of the factors is not necessarily determinative (seeMatter of Chambers v. Nassau County Health Care Corp. , 50 A.D.3d 1134, 857 N.Y.S.2d 222 ), whether the public corporation had actual knowledge of the essential facts constituting the claim is of great importance (seeMatter of Gonzalez v. City of New York , 60 A.D.3d 1058, 1059, 876 N.Y.S.2d 139 ; Matter of Felice v. Eastport/South Manor Cent. School Dist. , 50 A.D.3d at 147, 851 N.Y.S.2d 218 ).

  5. Soto v. N.Y.C. Hous. Auth.

    2020 N.Y. Slip Op. 31230 (N.Y. Sup. Ct. 2020)

    Furthermore, petitioner has failed to demonstrate a reasonable excuse for failing to timely file her Notice of Claim. Petitioner's explanation that she was unaware of the Notice of Claim filing requirements does not constitute a reasonable excuse (Matter of Islam v City of New York, 164 AD3d 672, 674 [2d Dept 2018]; citing Matter of Bush v City of New York, 76 AD3d 628 [2d Dept 2010]). Lastly, petitioner has failed to demonstrate a reasonable excuse for the subsequent delay in filing this petition after new counsel was retained (Ma v New York City Health and Hospitals Corp., 153 AD 3d 529 [2d Dept 2017], citing Matter of Maggio, 137 AD3d at 1283). Accordingly, petitioner's order to show cause to permit service of a late notice of claim, nunc pro tunc is denied.