Wieman-Gibson v. Cnty. of Suffolk

206 A.D.3d 666

170 N.Y.S.3d 123

In the Matter of Karen A. WIEMAN–GIBSON, appellant,

v.COUNTY OF SUFFOLK, respondent.

2019–09156

Index No. 616015/18

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

Submitted—February 24, 2022

June 1, 2022

Celino & Barnes, P.C., Garden City, NY (John Lavelle of counsel), for appellant.

BETSY BARROS, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, 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, Suffolk County (Robert F. Quinlan, J.), dated June 6, 2019. The order denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is affirmed, without costs or disbursements.

On August 16, 2017, the petitioner allegedly was injured when she tripped and fell on an uneven or broken sidewalk located adjacent to the Suffolk County Police Department Headquarters, which is owned by the respondent, County of Suffolk. In August 2018, 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 a late notice of claim timely served upon the County nunc pro tunc. In an order dated June 6, 2019, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.

"Pursuant to General Municipal Law § 50–e(5), a court has the discretion to permit the service of a late notice of claim" ( Matter of Camet v. County of Suffolk, 100 A.D.3d 882, 882, 954 N.Y.S.2d 575 ). " ‘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 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 Duke v. Westchester Med. Ctr., 196 A.D.3d 482, 483, 147 N.Y.S.3d 414, 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 Snyder v. County of Suffolk, 116 A.D.3d 1052, 1053, 985 N.Y.S.2d 126, quoting Matter of Placido v. County of Orange, 112 A.D.3d 722, 723, 977 N.Y.S.2d 64 ).

Here, the petitioner failed to demonstrate that the County obtained timely, actual knowledge of the essential facts constituting the claim (see Matter of Government Empls. Ins. Co. v. Suffolk County Police Dept., 152 A.D.3d 517, 518, 58 N.Y.S.3d 514 ; Matter of D'Agostino v. City of New York, 146 A.D.3d 880, 880–881, 46 N.Y.S.3d 635 ). Contrary to the petitioner's contention, the fact that members of the Suffolk County Police Department may have had knowledge of her accident, without more, cannot be considered actual knowledge of the claim against the County (see Matter of D'Agostino v. City of New York, 146 A.D.3d at 881, 46 N.Y.S.3d 635 ; Matter of Mitchell v. Town of Greenburgh, 96 A.D.3d 852, 853, 946 N.Y.S.2d 220 ). In addition, the petitioner failed to annex to her petition an "Aided Report" allegedly executed by the police at the time of the accident, and therefore the contents of that report, and whether it describes the accident while "making a connection between the petitioner's injuries and negligent conduct on the part of the [County]," cannot be determined ( Matter of D'Agostino v. City of New York, 146 A.D.3d at 881, 46 N.Y.S.3d 635 [internal quotation marks omitted]; see Matter of Johnson v. County of Suffolk, 167 A.D.3d 742, 90 N.Y.S.3d 84 ; cf. Matter of Government Empls. Ins. Co. v. Suffolk County Police Dept., 152 A.D.3d 517, 58 N.Y.S.3d 514 ; ...