Clarke v. Veolia Transp. Servs., Inc.

204 A.D.3d 666

163 N.Y.S.3d 836 (Mem)

In the Matter of Joan CLARKE, appellant,

v.VEOLIA TRANSPORTATION SERVICES, INC., et al., respondents.

2019–09684

Index No. 601840/19

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

Submitted—January 11, 2022

April 6, 2022

Elovich & Adell, Long Beach, NY (Mitchel Sommer of counsel), for appellant.

Lewis Brisbois Bisgaard & Smith, LLP, New York, NY (Meredith Nolen and Adam Schwartzstein of counsel), for respondents.

COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), entered July 18, 2019. The order denied the petition and dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

On April 9, 2018, the petitioner allegedly sustained personal injuries when she fell while exiting a bus owned by the respondent County of Nassau and operated by the respondents Veolia Transportation Services, Inc., and Transdev Services, Inc. On February 7, 2019, the petitioner commenced this proceeding for leave to serve a late notice of claim upon the respondents. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.

A party seeking to sue a public corporation must serve a notice of claim on the public corporation within 90 days after the claim arises (see General Municipal Law § 50–e[1][a] ; Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460, 45 N.Y.S.3d 895, 68 N.E.3d 714 ). However, a court, in its discretion, may extend the time for a petitioner to serve a notice of claim (see General Municipal Law § 50–e[5] ). " ‘In determining whether to grant a petition for leave to serve a late notice of claim ... [the] court must consider all relevant 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 delay would substantially prejudice the public corporation in its defense, and whether the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim’ " ( Matter of Cruz v. Transdev Servs., Inc., 160 A.D.3d 729, 730, 75 N.Y.S.3d 71, quoting Matter of Weaver v. City of New York, 138 A.D.3d 873, 874, 29 N.Y.S.3d 539 ; see General Municipal Law § 50–e[5] ). "While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance" ( Matter of Cruz v. Transdev Servs., Inc., 160 A.D.3d at 730, 75 N.Y.S.3d 71 [internal quotation marks omitted]; see Etienne v. City of New York, 189 A.D.3d 1400, 1401, 134 N.Y.S.3d 738 ). "The determination of an application for leave to serve a late notice of claim is left to the sound discretion of the court" ( Matter of Cruz v. Transdev Servs., Inc., 160 A.D.3d at 730, 75 N.Y.S.3d 71 [internal quotation marks omitted]; see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 465, 45 N.Y.S.3d 895, 68 N.E.3d 714 ).

Here, the petitioner failed to establish that the respondents acquired actual knowledge of the essential facts constituting the claim within 90 days after its accrual or a reasonable time thereafter. The police accident report relied upon by the petitioner does not contain facts from which it can be readily inferred that a potentially actionable wrong had been committed by the respondents (see Durand v. MV Transp., Inc., 186 A.D.3d 564, 565–566, 129 N.Y.S.3d 123 ; Matter of Cruz v. Transdev Servs., Inc., 160 A.D.3d at 731, 75 N.Y.S.3d 71 ; Matter of Fethallah v. New York City Police Dept., 150 A.D.3d 998, 1000, 55 N.Y.S.3d 325 ). Although the responding officer noted that the petitioner was removed by ambulance from the scene, there is nothing in the report from which the respondents would infer actionable conduct on the part of the bus operator, as asserted in the petition.

Moreover, the petitioner's application for no-fault benefits is insufficient to satisfy the notice of claim requirements of General Municipal Law § 50–e (see Astree v. New York City Tr. Auth., 31 A.D.3d 589, 819 N.Y.S.2d 281 ; Delisca v. Liberty Lines Tr., Inc., 272 A.D.2d 291, 292, 707 N.Y.S.2d 886 ).

Further, the petitioner did not provide a reasonable excuse for her failure to serve a timely notice of claim upon the respondents, as ignorance of the law does not constitute a reasonable excuse (see Matter of Nunez...