December 2, 2020

Considering a plaintiff's request to extend the time to serve a notice of claim on a municipal entity and its officers and employees

A New York City Sanitation Department [DSNY] employee [Plaintiff] sustained injuries when he tripped and fell on a public sidewalk while working. A DSNY supervisor responded to the scene and promptly prepared an unusual occurrence report describing the location and circumstances of the line-of-duty injury. The supervisor's report included the statement that the Plaintiff "TRIPPED ON A RAISED PIECE OF SIDEWALK " [sic]. 

Plaintiff subsequently commenced a proceeding pursuant to General Municipal Law §50-e(5) seeking approval to serve a late notice of claim on the City of New York [City]. The City objected and Supreme Court denied the Plaintiff's petition. Plaintiff appealed the Supreme Court's ruling.

Although General Municipal Law §50-e.1(a) requires that a notice of claim be served on a public corporation as defined in the general construction law, or any officer, appointee or employee of such an entity, within ninety days after the claim arises,*  §50-e(5) also provides for a court's granting leave to serve a late notice of claim on a municipality or its officers and employees as a matter of the exercise of the court's discretion.

The Appellate Division reversed the Supreme Court's ruling, "on the facts and in the exercise of discretion, with costs," and granted Plaintiff's petition. The court explained that in determining whether to extend the time to serve a notice of claim, the court will consider, in particular:

1. Did the municipal entity receive actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter?;

2. Did the claimant have a reasonable excuse for the failure to timely serve a notice of claim?; and

3. Did the delay substantially prejudice the municipal entity in its defense on the merits?

In so doing the Appellate Division said that "the question of whether actual knowledge was timely acquired is considered to be the most important factor, citing Miskin v City of New York, 175 AD3d at 685. Further, said the court, a request for leave to serve a late notice of claim "is addressed to the sound discretion of the court ... keeping in mind that the statutory notice requirement is to be liberally construed."

Although the Appellate Division said it agreed with Supreme Court that Plaintiff "failed to proffer a reasonable excuse for his delay, since his claims of ignorance and lack of awareness of the severity of his injuries were not supported by any medical evidence and were patently insufficient," nevertheless the court opined that the lack of a valid excuse for the delay is not necessarily fatal to a petition for leave to serve a late notice of claim where other factors militate in favor of granting the petition, citing Williams v Nassau County Med. Ctr., 6 NY3d 531.

In the instant case the court concluded that "the balance of the statutory factors in this case warrants the granting of the petition," noting that a supervisor had prepared and filed an "unusual occurrence report" shortly after Plaintiff's accident which provided the City with "timely actual knowledge of the essential facts constituting the claim, since its specificity regarding the location and circumstances of the incident permitted the City to readily infer that a potentially actionable wrong had been committed."

Noting that Plaintiff had [a] satisfied his burden of presenting some evidence or plausible argument to support a finding of no substantial prejudice to the City in defending against Plaintiff's claim and the City [b] failed to rebut this showing with particularized evidence of substantial prejudice, the Appellate Division held that Supreme Court "improvidently exercised its discretion in denying [Plaintiff's] petition for leave to serve a late notice of claim."

* In wrongful death actions, however, the ninety day period to file a timely action begins running from the date of the appointment of a representative of the decedent's estate.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06776.htm

 

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