Opinion
2020–03628 Index No. 524311/19
12-29-2021
In the Matter of Tarsha THOMAS, appellant, v. NEW YORK CITY HOUSING AUTHORITY, respondent.
Krentsel Guzman Herbert, LLP, New York, NY (Marcia K. Raicus of counsel), for appellant. Herzfeld & Rubin, P.C., New York, NY (Linda M. Brown of counsel), for respondent.
Krentsel Guzman Herbert, LLP, New York, NY (Marcia K. Raicus of counsel), for appellant.
Herzfeld & Rubin, P.C., New York, NY (Linda M. Brown of counsel), for respondent.
REINALDO E. RIVERA, J.P., ANGELA G. IANNACCI, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to deem a late notice of claim timely served nunc pro tunc, the petitioner appeals from an order of the Supreme Court, Kings County (Rosemarie Montalbano, J.), dated April 24, 2020. The order denied the petition and, in effect, dismissed the proceeding.
ORDERED that the order is affirmed, with costs.
On April 30, 2019, the petitioner allegedly was injured when she tripped and fell on an uneven or broken sidewalk owned by the New York City Housing Authority (hereinafter NYCHA). In November 2019, the petitioner commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to deem a late notice of claim timely served upon NYCHA nunc pro tunc. In an order dated April 24, 2020, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.
Generally, in order to commence a tort action against a public authority, a claimant must serve a notice of claim within 90 days after accrual of the claim (see Public Housing Law § 157[2] ; General Municipal Law §§ 50–e[1][a] ; 50–i[1]; Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; Matter of Brown v. New York City Hous. Auth., 182 A.D.3d 594, 120 N.Y.S.3d 807 ). A court may, in its discretion, extend the time to serve a notice of claim, provided that the extension does not exceed the time limit for the commencement of an action by the claimant against the public corporation (see General Municipal Law § 50–e[5] ; Public Housing Law § 157[2] ; Matter of R.N. v. Village of New Sq., 164 A.D.3d 508, 509, 83 N.Y.S.3d 102 ; Bazile v. City of New York, 94 A.D.3d 929, 929, 943 N.Y.S.2d 131 ). "Since the statutory notice requirement ‘is not intended to operate as a device to frustrate the rights of individuals with legitimate claims,’ and because of its remedial nature, it ‘should be liberally construed’ " ( Matter of Ramos v. New York City Hous. Auth., 162 A.D.3d 884, 885, 80 N.Y.S.3d 85, quoting Matter of Porcaro v. City of New York, 20 A.D.3d 357, 358, 799 N.Y.S.2d 450 ).
In determining whether a petitioner should be granted leave to serve a late notice of claim upon a public housing authority, the court should consider, as key factors, whether the petitioner had a reasonable excuse for the delay in serving a notice of claim, whether the public housing authority acquired actual knowledge of the essential facts of the claim within the statutory 90–day period or within a reasonable time thereafter, whether the petitioner made an excusable error concerning the identity of the public corporation against which the claim should be asserted, and whether the public housing authority will be substantially prejudiced by the delay in its defense on the merits (see General Municipal Law § 50–e[5] ; Public Housing Law § 157[2] ; Matter of Brown v. New York City Hous. Auth., 182 A.D.3d 594, 120 N.Y.S.3d 807 ).
Here, the Supreme Court providently exercised its discretion in denying the petition. The petitioner failed to demonstrate a reasonable excuse for service of the late notice of claim, which was a nullity, as it was made without leave of court (see W.Z. v. New York City Health & Hosps. Corp., 185 A.D.3d 759, 761, 127 N.Y.S.3d 125 ). The petitioner's contention that there was a misidentification of the responsible municipal corporation is improperly raised for the first time on appeal (see Matter of Voron v. Board of Mgrs. of the Newswalk Condominium, 186 A.D.3d 833, 835, 130 N.Y.S.3d 466 ; Cames v. Craig, 181 A.D.3d 851, 852, 119 N.Y.S.3d 888 ) and, in any event, does not constitute a reasonable excuse for the failure to timely serve a notice of claim (see Matter of Ramos v. New York City Hous. Auth., 162 A.D.3d at 885, 80 N.Y.S.3d 85 ). Moreover, the petitioner's failure to indicate the correct address for the location of the subject accident prejudiced NYCHA (see Torres v. Town of Babylon, 123 A.D.3d 1007, 1008, 999 N.Y.S.2d 513 ; Matter of Klass v. City of New York, 103 A.D.3d 800, 801, 959 N.Y.S.2d 738 ).
The petitioner's remaining contention is without merit.
RIVERA, J.P., IANNACCI, FORD and DOWLING, JJ., concur.