N. F. v. City of N.Y.

• Decision Date: 23 May 2018
• Docket Number: Index No. 12815/15,2016–09294
• Citation: 77 N.Y.S.3d 712,161 A.D.3d 1046
• Parties: N. F., etc., et al., appellants, v. CITY OF NEW YORK, et al., respondents.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 1046

77 N.Y.S.3d 712

N. F., etc., et al., appellants,

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

2016–09294

Index No. 12815/15

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

Submitted—January 18, 2018

Decided May 23, 2018

Rovegno & Cerrato, LLP, Great Neck, N.Y. (Robert B. Taylor of counsel), for appellants.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Emma Grunberg of counsel; Alessandra Zaldivar–Giuffredi on the brief), for respondents.

REINALDO E. RIVERA, J.P., COLLEEN D. DUFFY, BETSY BARROS, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Lara J. Genovesi, J.), dated June 17, 2016. The order denied the plaintiffs' motion pursuant to General Municipal Law § 50–e for leave to serve a late notice of claim.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for reconsideration of the subject motion in light of Matter of Newcomb v. Middle Country Cent. Sch. Dist. , 28 N.Y.3d 455, 45 N.Y.S.3d 895, 68 N.E.3d 714.

On June 18, 2015, the infant plaintiff, then fifth-grade student at P.S. 306 in Brooklyn, allegedly sustained personal injuries during lunch recess. The plaintiffs served a late notice of claim upon the defendants on October 16, 2015. Thereafter, on or about December 3, 2015, the plaintiffs moved for leave to serve a late notice of claim. The Supreme Court denied the motion, and the plaintiffs appeal.

In determining whether to grant leave to serve a late notice of claim under General Municipal Law § 50–e(5), the Supreme Court, in exercising its discretion, must consider all relevant facts, 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 statute also requires the court to consider, inter alia, "whether the claimant was an infant" ( General Municipal Law § 50–e[5] ). As a general matter, "[t]he impediment [to timely filing] may reasonably be presumed to attend infancy; there is no requirement that it be factually demonstrated" ( Williams v. Nassau County Medical Ctr., 6 N.Y.3d at 538, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [internal quotation marks omitted] ). The presence or absence of any one 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 ; Matter of Hubbard v. County of Madison, 71 A.D.3d 1313, 897 N.Y.S.2d 538 ; Brownstein v. Incorporated Vil. of Hempstead, 52 A.D.3d 507, 509, 859 N.Y.S.2d 682 ).

In the order appealed from, the Supreme Court, relying upon this Court's jurisprudence (see Matter of Stark v. West Hempstead Union Free Sch. Dist., 127 A.D.3d 765, 7 N.Y.S.3d 216 ), determined that the plaintiffs "failed to rebut the presumption that the more than 30–day delay in serving the notice of claim, and the 83–day delay in making the motion for leave to serve a late notice of claim would substantially prejudice the [defendants'] ability to conduct an investigation of the claim or to maintain a defense on the merits." While this appeal was pending, the Court of Appeals decided Matter of Newcomb v. Middle Country Cent. Sch. Dist. , 28 N.Y.3d 455, 45 N.Y.S.3d 895, 68 N.E.3d 714, in which the Court of Appeals held that a determination that the municipality or public corporation "is substantially prejudiced by a late notice of claim cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence in the record" ( id. at 465–466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ).

The Court of Appeals endorsed a new rule establishing a shifting burden of proof in demonstrating that late service of a notice of claim substantially prejudices a municipality or public corporation (see id. at 467, 45 N.Y.S.3d 895, 68 N.E.3d 714 ). A petitioner has the initial burden of showing that the late notice will not substantially prejudice the municipality or public corporation (see id. at 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ). "Such a showing need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice" ( id. ). Once this initial showing has been made, the municipality or public corporation must respond "with a particularized evidentiary showing" that it will be substantially prejudiced if the late notice is allowed ( id. at 467, 45 N.Y.S.3d 895, 68 N.E.3d 714 ). The municipality or public corporation is required to submit admissible evidence to meet its burden because it "is in the best position to know...