Opinion
15564 Index No. 160235/20 Case No. 2021–01478
03-22-2022
Jessica BORNSCHEIN, as Administratrix of the Estate of Ryan T. Bornschein, Plaintiff–Appellant, v. The CITY OF NEW YORK et al., Defendants–Respondents.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant. Georgia M. Pestana, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant.
Georgia M. Pestana, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.
Renwick, J.P., Manzanet–Daniels, Singh, Kennedy, Scarpulla, JJ.
Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered March 18, 2021, which denied the petition for leave to file a late notice of claim, unanimously affirmed, without costs.
Petitioner failed to show that respondents acquired actual knowledge of the essential facts constituting her claim of wrongful death, conscious pain and suffering, and personal injuries allegedly sustained by her decedent within 90 days after the claim arose or within a reasonable time thereafter (see General Municipal Law § 50–e[5] ). Respondents’ actual knowledge cannot be presumed, as petitioner submitted no reports generated by employees of respondents whose conduct forms the basis of this action and connects the decedent's death with any negligence on the part of respondents (see Matter of Orozco v. City of New York, 200 A.D.3d 559, 562–563, 161 N.Y.S.3d 1 [1st Dept. 2021] ).
Petitioner also failed to show that her 11–month delay in serving a notice of claim after the 90–day statutory period had expired would not substantially prejudice respondents in maintaining their defense on the merits (see Matter of McLeod v. Department of Sanitation, 183 A.D.3d 548, 549, 124 N.Y.S.3d 672 [1st Dept. 2020] ; Matter of J.H. v. New York City Health & Hosps. Corp., 179 A.D.3d 452, 113 N.Y.S.3d 542 [1st Dept. 2020] ). Thus, respondents were not required to make a particularized showing of prejudice ( Matter of J.H., 179 A.D.3d 452, 113 N.Y.S.3d 542 ).
We have considered petitioner's remaining arguments and find them unavailing.