Opinion
638 Index No. 153558/22 Case No.2023–00470
09-26-2023
In the Matter of Mercedes SALAZAR, Petitioner–Appellant, v. METROPOLITAN TRANSPORTATION AUTHORITY et al., Respondents–Respondents.
Mitchell Dranow, Sea Cliff, for appellant. Anna J. Ervolina, Brooklyn (Timothy J. O'Shaughnessy of counsel), for respondents.
Mitchell Dranow, Sea Cliff, for appellant.
Anna J. Ervolina, Brooklyn (Timothy J. O'Shaughnessy of counsel), for respondents.
Manzanet–Daniels, J.P., Mendez, Shulman, Rosado, O'Neill Levy, JJ.
Order, Supreme Court, New York County (Denise M. Dominguez, J.), entered December 7, 2022, which denied the petition under General Municipal Law § 50–e(5) for leave to serve a late notice of claim and dismissed the proceeding, unanimously affirmed, without costs.
Petitioner alleges that she was injured on October 10, 2021, when a bus on which she was a passenger stopped short, causing her to fall to the floor. She served a notice of claim on respondents on January 13, 2022, 95 days after the incident.
Supreme Court providently exercised its discretion in denying petitioner's application to file a late notice of claim (see General Municipal Law § 50–e [5] ; Matter of Newcomb v. Middle Country Cent. School Dist., 28 N.Y.3d 455, 465, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016] ). Petitioner did not establish that respondents acquired actual knowledge of the essential facts constituting the claim within 90 days of the alleged accident. Even assuming that the bus operator saw the incident, his knowledge that petitioner had fallen did nothing to inform respondents that she was actually injured, let alone the extent of her injuries (see e.g. Bornschein v. City of New York, 203 A.D.3d 570, 570, 162 N.Y.S.3d 708 [1st Dept. 2022] ; Olivera v. City of New York, 270 A.D.2d 5, 5–6, 704 N.Y.S.2d 42 [1st Dept. 2000] ).
In addition, petitioner failed to establish a reasonable excuse for the delay (see Matter of Townson v. New York City Health & Hosps. Corp., 158 A.D.3d 401, 402, 70 N.Y.S.3d 200 [1st Dept. 2018] ). Her assertion that she did not know about the notice of claim requirement or the deadline within which to file a notice of claim does not constitute a valid excuse (see e.g.
Matter of Todd v. New York City Health & Hosps. Corp. Off. of Legal Affairs, Claims Div., 129 A.D.3d 433, 433, 11 N.Y.S.3d 124 [1st Dept. 2015], lv dismissed in part, denied in part 26 N.Y.3d 1102, 24 N.Y.S.3d 582, 45 N.E.3d 622 [2016] ). Equally unavailing is the later excuse, proffered by her counsel, of law office failure, especially since counsel admitted that he was retained before the notice of claim deadline had expired but offered no excuse for failing to serve the notice of claim within the statutory timeframe (see e.g. Colarossi v. City of New York, 118 A.D.3d 612, 612, 989 N.Y.S.2d 24 [1st Dept. 2014] ).
Finally, petitioner failed to show that respondents will not be substantially prejudiced by the delay in serving a notice of claim, as the failure to give notice deprived them of the opportunity to conduct a prompt investigation of the allegations (see Nossogona C. v. New York City Health & Hosps. Corp., 213 A.D.3d 407, 408, 183 N.Y.S.3d 374 [1st Dept. 2023] ; Ifejika–Obukwelu v. New York City Dept. of Educ., 47 A.D.3d 447, 447, 851 N.Y.S.2d 398 [1st Dept. 2008] ).