Brown v. City of N.Y.

202 A.D.3d 783

158 N.Y.S.3d 864 (Mem)

In the Matter of Pincus BROWN, appellant,

v.CITY OF NEW YORK, et al., respondents.

2019–06370

Index No. 524696/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 5, 2021

February 9, 2022

Wolf & Associates, PLLC, Brooklyn, NY (Martin Wolf of counsel), for appellant.

Georgia M. Pestana, Corporation Counsel, New York, NY (Scott Shorr and Eva L. Jerome of counsel), for respondents.

HECTOR D. LASALLE, P.J., COLLEEN D. DUFFY, WILLIAM G. FORD, DEBORAH A. DOWLING, 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, Kings County (Reginald A. Boddie, J.), dated March 8, 2019. The order denied the petition.

ORDERED that the order is affirmed, with costs.

The petitioner commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim upon the City of New York and the New York City Department of Transportation (hereinafter together the City) or to deem a late notice of claim timely served nunc pro tunc. The Supreme Court denied the petition, and the petitioner appeals.

" ‘In determining whether to grant a petition for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider all relevant circumstances, including whether (1) 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, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits’ " ( Matter of Reddick v. New York City Hous. Auth., 188 A.D.3d 890, 890, 132 N.Y.S.3d 317, quoting Matter of Nadler v. City of New York, 166 A.D.3d 618, 619, 87 N.Y.S.3d 335 ; see General Municipal Law § 50–e[5] ).

Here, the City did not acquire actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the 90–day period (see Matter of Ashkenazie v. City of New York, 165 A.D.3d 785, 786, 85 N.Y.S.3d 508 ; Matter of Sanchez v. City of New York, 116 A.D.3d 703, 704, 983 N.Y.S.2d 303 ; Matter of Valila v. Town of Hempstead, 107 A.D.3d 813, 815, 968 N.Y.S.2d 100 ). Further, the petitioner failed to meet his burden of presenting some evidence or plausible argument that supports a finding that the delay would not substantially prejudice the City in maintaining its defense on the merits (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ). Finally, the petitioner failed to demonstrate a reasonable excuse for his failure to serve a...