Etienne v. City of N.Y.

• Decision Date: 23 December 2020
• Docket Number: Index No. 525286/18,2019–05757
• Citation: Etienne v. City of N.Y., 189 A.D.3d 1400, 134 N.Y.S.3d 738(Mem) (N.Y. App. Div. 2020)
• Parties: In the Matter of Jean Marie ETIENNE, et al., appellants, v. CITY OF NEW YORK, respondent.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1400

134 N.Y.S.3d 738 (Mem)

In the Matter of Jean Marie ETIENNE, et al., appellants,

v.CITY OF NEW YORK, respondent.

2019–05757

Index No. 525286/18

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

Submitted—June 22, 2020

December 23, 2020

Pops & Associates (Thomas Torto, New York, NY, of counsel), for appellants.

James E. Johnson, Corporation Counsel, New York, N.Y. (Devin Slack and Antonella Karlin of counsel; Edwin Torres on the brief), for respondent.

MARK C. DILLON, J.P., HECTOR D. LASALLE, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the petitioners appeal from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated February 13, 2019. The order denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

On November 27, 2017, Jean Marie Etienne and Yollande Andre–Poteau (hereinafter together the petitioners) allegedly were injured when the school bus in which they were occupants was sideswiped in Brooklyn by a fire truck owned by the Fire Department of the City of New York (hereinafter the FDNY). At the time of the accident, the petitioners were employees of New Dawn Transit. Etienne was the operator of the bus and Andre–Poteau was a bus matron.

On December 11, 2018, the petitioners commenced a personal injury action against the City of New York. On December 21, 2018, they commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim upon the City. In support, the petitioners submitted, inter alia, a proposed notice of claim, which alleged that each petitioner sustained severe injuries to the neck, back, and extremities as a result of the accident. The Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioners appeal.

General Municipal Law § 50–e(1)(a) provides, in relevant part, that "[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, ... the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises."

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 claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the municipality in its defense (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 ; Constantino v. City of New York, 165 A.D.3d 1225, 1225–1126, 87 N.Y.S.3d 612 ). 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 ). However, "whether the public corporation acquired timely, actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter is a factor which should be accorded great weight in determining whether to grant leave to serve a late notice of claim" ( Matter of Messick v. Greenwood Lake Union Free Sch. Dist., 164 A.D.3d 1448, 1450, 84 N.Y.S.3d 215 ).

Contrary to the petitioners' contention, the City did not acquire timely, actual knowledge of the essential facts constituting the claim.

The police accident report was inadequate to provide the City with actual knowledge of the facts constituting the claim against it, since it failed to alert the City to the petitioners' claim that they had been seriously injured as a result of the accident (see Matter of Molme v. New York City Tr. Auth., 177 A.D.3d 601, 602, 112 N.Y.S.3d 167 ; Matter of Naar v. City of New York, 161 A.D.3d 1081, 1083, 77 N.Y.S.3d 706 ; Matter of Walker v. Riverhead Cent. Sch. Dist., 107 A.D.3d 727, 728, 967 N.Y.S.2d 92 ; Matter of Keyes v. City of New York, 89 A.D.3d 1086, 933 N.Y.S.2d 607 ).

Further, the petitioners' contention that the City acquired actual knowledge of the claim based on the allegations that its employees were directly involved in the accident and that the police responded to the scene, without more, such as a report or other evidence demonstrating that the City acquired timely, actual knowledge of the essential facts constituting the claim, is without merit (see Matter of Brown v. City of New York, 174 A.D.3d 800, 801–802, 106 N.Y.S.3d 141 ; Matter of Naar v. City of New York, 161 A.D.3d at 1083, 77 N.Y.S.3d 706 ; Matter of Thill v. North Shore Cent. Sch. Dist., 128 A.D.3d 976, 977, 10 N.Y.S.3d 144 ; Matter of Thompson v. City of New York,...