Opinion
2019–03050 Index No. 524580/18
11-18-2020
In the Matter of Vincenzo CATANIA, Appellant, v. CITY OF NEW YORK, Respondent.
Subin Associates, LLP (Pollack Pollack Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Jillian Rosen ], of counsel), for appellant. James E. Johnson, Corporation Counsel, New York, N.Y. (John Moore and Tashmin Rahman of counsel), for respondent.
Subin Associates, LLP (Pollack Pollack Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Jillian Rosen ], of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York, N.Y. (John Moore and Tashmin Rahman of counsel), for respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JOHN M. LEVENTHAL, ROBERT J. MILLER, 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, Kings County (Reginald A. Boddie, J.), dated January 25, 2019. The order denied the petition.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the petition is granted.
At approximately 10:30 p.m. on September 21, 2017, the petitioner, a New York City Sanitation Department (hereinafter DSNY) employee, sustained injuries when he tripped and fell on a public sidewalk while working in front of a residence in Brooklyn. 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 and reciting that the petitioner "TRIPPED ON A RAISED PIECE OF SIDEWALK." On December 7, 2018, the petitioner commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim on the City of New York. The City opposed the petition. In an order dated January 25, 2019, the Supreme Court denied the petition, and the petitioner appeals.
Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against a municipal entity (see General Municipal Law § 50–e ; Davidson v. Bronx Mun. Hosp. , 64 N.Y.2d 59, 484 N.Y.S.2d 533, 473 N.E.2d 761 ; Matter of Cuccia v. Metropolitan Transp. Auth. , 150 A.D.3d 849, 55 N.Y.S.3d 83 ). In determining whether to extend the time to serve a notice of claim, the court will consider whether, in particular, the municipal entity received actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the claimant has a reasonable excuse for the failure to timely serve a notice of claim, and whether the delay would substantially prejudice the municipal entity in its defense on the merits (see Matter of Miskin v. City of New York , 175 A.D.3d 684, 107 N.Y.S.3d 96 ; Matter of Cruz v. City of New York , 149 A.D.3d 835, 52 N.Y.S.3d 380 ). While no one factor is determinative (see J.B. v. Singh , 172 A.D.3d 1291, 99 N.Y.S.3d 673 ; Matter of Lawhorne v. City of New York , 133 A.D.3d 856, 20 N.Y.S.3d 155 ), the question of whether actual knowledge was timely acquired is considered to be the most important factor (see Matter of Miskin v. City of New York , 175 A.D.3d at 685, 107 N.Y.S.3d 96 ). A request for leave to serve a late notice of claim is addressed to the sound discretion of the court (see Matter of Newcomb v. Middle Country Cent. Sch. Dist. , 28 N.Y.3d 455, 465, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; Matter of Grande v. City of New York , 133 A.D.3d 752, 20 N.Y.S.3d 143 ), keeping in mind that the statutory notice requirement is to be liberally construed (see Matter of D.S. v. South Huntington Union Free Sch. Dist. , 176 A.D.3d 1075, 1076, 111 N.Y.S.3d 687 ).
Here, we agree with the Supreme Court that the petitioner 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 (see Matter of Maldonado v. City of New York , 152 A.D.3d 522, 58 N.Y.S.3d 506 ; Matter of Fethallah v. New York City Police Dept. , 150 A.D.3d 998, 55 N.Y.S.3d 325 ; Matter of Lawhorne v. City of New York , 133 A.D.3d at 857, 20 N.Y.S.3d 155 ). However, 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 (see Williams v. Nassau County Med. Ctr. , 6 N.Y.3d 531, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ; Matter of Tejada v. City of New York , 161 A.D.3d 876, 77 N.Y.S.3d 95 ; Matter of Cruz v. City of New York , 149 A.D.3d at 835, 52 N.Y.S.3d 380 ).
We conclude that the balance of the statutory factors in this case warrants the granting of the petition. The unusual occurrence report prepared and filed shortly after the petitioner's accident 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 (see Matter of Nieto v. City of New York , 170 A.D.3d 1022, 96 N.Y.S.3d 283 ; Matter of Cruz v. City of New York , 149 A.D.3d at 836, 52 N.Y.S.3d 380 ; Matter of Grande v. City of New York , 133 A.D.3d at 753, 20 N.Y.S.3d 143 ; Matter of Mounsey v. City of New York , 68 A.D.3d 998, 891 N.Y.S.2d 440 ).
Moreover, the City's acquisition of timely actual knowledge of the facts constituting the claim, along with the petitioner's submission of evidence indicating that the conditions at the accident scene remained unchanged, satisfied the petitioner's burden of presenting some evidence or plausible argument to support a finding of no substantial prejudice to the City in defending against the claim (see Matter of Newcomb v. Middle Country Cent. Sch. Dist. , 28 N.Y.3d at 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; J.B. v. Singh , 172 A.D.3d at 1292, 99 N.Y.S.3d 673 ; Matter of Nieto v. City of New York , 170 A.D.3d at 1023–1024, 96 N.Y.S.3d 283 ; Matter of Tejada v. City of New York , 161 A.D.3d at 878, 77 N.Y.S.3d 95 ), and the City failed to rebut this showing with particularized evidence of substantial prejudice. Accordingly, the Supreme Court improvidently exercised its discretion in denying the petition for leave to serve a late notice of claim.
MASTRO, J.P., AUSTIN, LEVENTHAL and MILLER, JJ., concur.