Opinion
2016–12584 Index No. 509830/16
04-25-2018
In the Matter of Abad DEGRAFFE, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., respondents.
Sacco & Fillas, LLP, Astoria, N.Y. (James R. Baez of counsel), for appellant. Lawrence Heisler, Brooklyn, N.Y. (Harriet Wong of counsel), for respondents.
Sacco & Fillas, LLP, Astoria, N.Y. (James R. Baez of counsel), for appellant.
Lawrence Heisler, Brooklyn, N.Y. (Harriet Wong of counsel), for respondents.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDERIn a proceeding for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Kings County (Dawn Jimenez–Salta, J.), dated August 5, 2016. The order denied the petition and, in effect, dismissed the proceeding.
ORDERED that the order is affirmed, with costs.
A party seeking to sue a public corporation generally 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] ; Public Authorities Law § 1212[2] ; 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] ; 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 ). "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 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] ; Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 535, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ; Matter of Fethallah v. New York City Police Dept., 150 A.D.3d 998, 999–1000, 55 N.Y.S.3d 325 ; Matter of Ramos v. Board of Educ. of the City of N.Y., 148 A.D.3d 909, 910, 49 N.Y.S.3d 539 ).
"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 Iacone v. Town of Hempstead, 82 A.D.3d 888, 888–889, 918 N.Y.S.2d 202 [citations omitted]; see Matter ofFelice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 147, 851 N.Y.S.2d 218 ). "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 Vasquez v. City of Newburgh, 35 A.D.3d 621, 623, 826 N.Y.S.2d 648 ; 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, contrary to the petitioner's contention, he failed to establish that the respondents received actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter. The mere alleged existence of certain reports and other records, without evidence of their content, is insufficient to impute actual knowledge to the respondents (see Matter ofFethallah v. New York City Police Dept., 150 A.D.3d at 1000, 55 N.Y.S.3d 325 ; Matter of Hamilton v. City of New York, 145 A.D.3d 784, 785, 43 N.Y.S.3d 131 ). Furthermore, the petitioner failed to provide a reasonable excuse for his failure to serve a timely notice of claim (see Matter ofBhargava v. City of New York, 130 A.D.3d 819, 820, 13 N.Y.S.3d 552 ; Matter of Hampson v. Connetquot Cent. Sch. Dist., 114 A.D.3d 790, 791, 980 N.Y.S.2d 132 ). Finally, the petitioner failed to present "some evidence or plausible argument" supporting a finding that the respondents were not substantially prejudiced by the delay ( Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 466, 68 N.E.3d 714 ; Matter of Fethallah v. New York City Police Dept., 150 A.D.3d at 1001, 55 N.Y.S.3d 325 ).
Accordingly, the Supreme Court providently exercised its discretion in denying the petition and, in effect, dismissing the proceeding.
RIVERA, J.P., MILLER, BRATHWAITE NELSON and IANNACCI, JJ., concur.