Constantino v. City of N.Y.

• Decision Date: 31 October 2018
• Docket Number: 2017–02217,Index No. 51877/16
• Citation: Constantino v. City of N.Y., 165 A.D.3d 1225, 87 N.Y.S.3d 612 (N.Y. App. Div. 2018)
• Parties: Ada CONSTANTINO, Appellant, v. CITY OF NEW YORK, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 1225

87 N.Y.S.3d 612

Ada CONSTANTINO, Appellant,

v.CITY OF NEW YORK, et al., Respondents.

2017–02217

Index No. 51877/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 17, 2018

October 31, 2018

David J. Hernandez, Brooklyn, N.Y. (David A. Bonilla of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Dona B. Morris of counsel), for respondents.

JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated January 20, 2017. The order denied the plaintiff's motion pursuant to General Municipal Law § 50–e for leave to serve a late notice of claim, and granted the defendants' cross motion to dismiss the complaint for failure to timely serve a notice of claim.

ORDERED that the order is affirmed, with costs.

On January 18, 2016, the plaintiff allegedly sustained personal injuries when she slipped and fell upon a patch of ice on the sidewalk abutting the Dyker Beach Golf Course, which is owned and operated by the defendants. In July 2016, the plaintiff commenced this action to recover damages for personal injuries. On September 8, 2016, the plaintiff moved pursuant to General Municipal Law § 50–e for leave to serve a late notice of claim. The defendants cross-moved to dismiss the complaint for failure to timely serve a notice of claim. The Supreme Court denied the plaintiff's motion, and granted the defendants' cross motion. The plaintiff appeals.

In determining whether to grant leave to serve a late notice of claim under General Municipal Law § 50–e(5), the court, in its discretion, must consider all relevant facts and circumstances, including, but not limited to, whether (1) the municipality or public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the delay would substantially prejudice the municipality or public corporation in its defense, and (3) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460–461, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 539, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ). The presence or absence of any factor is not determinative (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 467, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; Matter of City of New York v. County of Nassau, 146 A.D.3d 948, 950, 46 N.Y.S.3d 155 ; Brownstein v. Incorporated Vil. of Hempstead, 52 A.D.3d 507, 509, 859 N.Y.S.2d 682 ).

Here, the Supreme Court providently exercised its discretion in denying the plaintiff's motion for leave to serve a late notice of claim. The plaintiff's failure to ascertain that the defendants owned the Dyker Beach Golf Course was attributable to a lack of due diligence in investigating the matter, which is an unacceptable excuse (see Matter of Quinones v. City of New York, 160 A.D.3d 874, 74 N.Y.S.3d 602 ; Kelly v. City of New York, 153 A.D.3d 1388, 1389, 63 N.Y.S.3d 385 ; Matter of Placido v. County of Orange, 112 A.D.3d 722, 723, 977 N.Y.S.2d 64 ). The plaintiff did not establish that the defendants acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, which is an important factor (see Matter of McClancy v. Plainedge Union Free Sch. Dist., 153 A.D.3d 1413, 1414–1415, 62 N.Y.S.3d 126 ; Horn v. Bellmore Union Free Sch. Dist., 139 A.D.3d 1006, 1007, 32 N.Y.S.3d 289 ). Even assuming that the plaintiff met her initial burden to show that the late notice would not substantially prejudice the defendants in their defense, and that the defendants, in response, failed to make a particularized evidentiary showing that they will be substantially prejudiced if the late notice is allowed (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 466–467, 45 N.Y.S.3d 895, 68 N.E.3d 714 ),...