Lang v. Cnty. of Nassau

• Decision Date: 09 November 2022
• Docket Number: 2020-07368,Index No. 602380/20
• Citation: Lang v. Cnty. of Nassau, 210 A.D.3d 773, 178 N.Y.S.3d 178 (N.Y. App. Div. 2022)
• Parties: In the Matter of Mindy LANG, etc., respondent, v. COUNTY OF NASSAU, appellant.
• Court: New York Supreme Court — Appellate Division

210 A.D.3d 773

178 N.Y.S.3d 178

In the Matter of Mindy LANG, etc., respondent,

v.COUNTY OF NASSAU, appellant.

2020-07368

Index No. 602380/20

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

Argued—September 30, 2022

November 9, 2022

Thomas A. Adams, County Attorney, Mineola, NY (Robert Van der Waag and Samantha Goetz of counsel), for appellant.

Parker Waichman, LLP, Port Washington, NY (Jay L.T. Breakstone of counsel), for respondent.

COLLEEN D. DUFFY, J.P., LINDA CHRISTOPHER, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the County of Nassau appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered August 12, 2020. The order granted the petition.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the petition is denied, and the proceeding is dismissed.

On September 2, 2019, the petitioner allegedly was injured when she tripped and fell on a cracked and uneven roadway condition. On February 21, 2020, the petitioner commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served upon the County of Nassau nunc pro tunc. In an order entered August 12, 2020, the Supreme Court granted the petition. The County appeals.

" General Municipal Law § 50–e(5) permits a court, in its discretion, to extend the time for a petitioner to serve a notice of claim" ( 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 ). In determining whether to grant leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether (1) the claimant demonstrated a reasonable excuse for the failure to timely serve the notice, (2) the municipal entity 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 in seeking leave would substantially prejudice the municipal entity in its ability to defend against the action (see General Municipal Law § 50–e[5] ; Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 463–464, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; Matter of Perez v. City of New York, 175 A.D.3d 1534, 1535, 109 N.Y.S.3d 153 ; Matter of Bermudez v. City of New York, 167 A.D.3d 733, 734, 89 N.Y.S.3d 289 ).

"[A] court's decision to grant or deny a motion to serve a late notice of claim is ‘purely a discretionary one’ " ( Matter of Newcomb v. Middle County Cent. Sch. Dist., 28 N.Y.3d at 465, 45 N.Y.S.3d 895, 68 N.E.3d 714, quoting Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 265, 434 N.Y.S.2d 138, 414 N.E.2d 639 ). Although the "lower courts have broad discretion to evaluate the factors," a "lower court's determinations must be supported by record evidence" ( 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 ).

Contrary to the Supreme Court's determination, the evidence submitted in support of the petition failed to establish that the County acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter. "In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves" ( Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 148, 851 N.Y.S.2d 218 ). Contrary to the petitioner's contention, the fact that members of the Nassau County Police Department and a County ambulance responded to the scene and tended to her injuries, without more, cannot be considered actual knowledge of the essential facts constituting the claim against the County (see Matter of Wieman–Gibson v. County of Suffolk, 206 A.D.3d 666, 170 N.Y.S.3d 123 ; Etienne v. City of New York, 189 A.D.3d 1400, 1401–1402, 134 N.Y.S.3d 738 ; Matter of Brown v. City of New York, 174 A.D.3d 800, 801–802, 106 N.Y.S.3d 141 ). The petitioner failed to present any evidence to demonstrate that the County had knowledge of the circumstances of the accident from which it could "readily infer" that a "potentially actionable wrong had been committed" by it ( Matter of Fethallah v. New York City Police Dept., 150 A.D.3d 998, 1000, 55 N.Y.S.3d 325 [internal quotation marks omitted]; see Matter of Johnson v. County of Suffolk, 167 A.D.3d 742, 745, 90 N.Y.S.3d 84 ). Moreover, the late notice of claim, served upon the County without leave of court 50 days after the 90–day statutory period had expired, was served too late to provide the County with actual knowledge of the essential facts constituting the claim within a reasonable time after the 90–day statutory period expired (see Matter of Galicia v. City of New York, 175 A.D.3d 681, 683, 107 N.Y.S.3d 430 ; Matter of Naar v. City of New York, 161 A.D.3d 1081, 1083, 77 N.Y.S.3d 706 ; Matter of Ronness v. City of New York, 151 A.D.3d 976, 977, 55 N.Y.S.3d 450 ; Matter of Bhargava v. City of New York, 130 A.D.3d 819, 820–821, 13 N.Y.S.3d 552 ).

The petitioner also failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim. The petitioner's conclusory assertion that her injuries prevented her from making timely service, without any supporting medical documentation or evidence, was insufficient to constitute a reasonable excuse (see Etienne v. City of New York, 189 A.D.3d at 1402, 134 N.Y.S.3d 738 ; Matter of Bermudez v....