Ortiz v. Westchester Cnty.

• Court: New York Supreme Court — Appellate Division
• Citation: Ortiz v. Westchester Cnty., 208 A.D.3d 487, 172 N.Y.S.3d 484 (N.Y. App. Div. 2022)
• Decision Date: 03 August 2022
• Docket Number: 2021-02820,Index No. 66476/20
• Parties: In the Matter of Emery ORTIZ, petitioner-respondent, v. WESTCHESTER COUNTY, respondent, Department of Housing and Buildings, et al., appellants.

208 A.D.3d 487

172 N.Y.S.3d 484

In the Matter of Emery ORTIZ, petitioner-respondent,

v.WESTCHESTER COUNTY, respondent,Department of Housing and Buildings, et al., appellants.

2021-02820

Index No. 66476/20

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

Argued—May 3, 2022

August 3, 2022

Matthew I. Gallagher, Corporation Counsel, Yonkers, NY (David P. Redmond of counsel), for appellants.

Dell & Dean, PLLC (Joseph G. Dell and Mischel & Horn, P.C., New York, NY [Scott T. Horn and Andrew J. Fisher ], of counsel), for petitioner-respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, LARA J. GENOVESI, JJ.

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50–e(5), inter alia, to deem a late notice of claim timely served nunc pro tunc, the Department of Housing and Buildings and the City of Yonkers appeal from an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated March 10, 2021. The order granted the petition.

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

In a notice of claim dated March 4, 2020, the petitioner alleged that on December 2, 2019, while walking on an entrance ramp of a building owned by the defendant City of Yonkers and occupied by the defendant Department of Housing and Buildings (hereinafter together the appellants), she slipped and fell as a result of an icy/snowy dangerous condition. The notice of claim included photographs allegedly depicting the location of the accident. By letter dated March 17, 2020, the appellants rejected the notice claim as untimely for not having been served within 90 days after the accident. Approximately nine months later, on December 22, 2020, the petitioner commenced this proceeding to deem the notice of claim timely served nunc pro tunc, or, in the alternative, to permit the serving and filing of a late notice of claim. By order dated March 10, 2021, the Supreme Court granted the petition and deemed the late notice of claim timely served nunc pro tunc. This appeal ensued.

General Municipal Law § 50–e(5) provides that "[u]pon application, the court, in its discretion, may extend the time to serve a notice of claim," and that "[i]n determining whether to grant the extension, the court shall consider, in particular, whether the public corporation ... acquired actual knowledge of the essential facts constituting the claim within [90 days after the claim arises] or within a reasonable time thereafter." "The court shall also consider all other relevant facts and circumstances," including "whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits" (id. ), and whether the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim (see Pannell v. New York City Health & Hosps. Corp., 192 A.D.3d 1130, 145 N.Y.S.3d 578 ; Matter of Brown v. New York City Health & Hosps. Corp., 190 A.D.3d 969, 970, 136 N.Y.S.3d 900 ; Matter of Reddick v. New York City Hous. Auth., 188 A.D.3d 890, 132 N.Y.S.3d 317 ).

"While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance" ( Matter of Cruz v. Transdev Servs., Inc., 160 A.D.3d 729, 730, 75 N.Y.S.3d 71 [internal quotation marks omitted]; see Etienne v. City of New York, 189 A.D.3d 1400, 1401, 134 N.Y.S.3d 738 ). "The determination of an application for leave to serve a late notice of claim or deem a late notice of claim timely served nunc pro tunc is left to the sound discretion of the trial court" ( Matter of Beaton v. City of New York, 186 A.D.3d 1677, 1678, 129 N.Y.S.3d 836 ; see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 465, 45 N.Y.S.3d 895, 68 N.E.3d 714 ).

Here, even if this Court were to excuse the petitioner's initial two- or three-day delay in serving a notice of claim after the expiration of the 90–day period, the petitioner failed to demonstrate a reasonable excuse for the additional nine-month delay between the time the appellants rejected the notice of claim as untimely and the commencement of this proceeding (see Matter of Naar v. City of New York, 161 A.D.3d 1081, 1083, 77 N.Y.S.3d 706 ; Kelly v. City of New York, 153 A.D.3d 1388, 1389, 63 N.Y.S.3d 385 ; Matter of Sanchez v. City of New York, 116 A.D.3d 703, 703–704, 983 N.Y.S.2d 303 ).

Furthermore, the appellants did not acquire actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter (see General Municipal Law § 50–e[1], [5] ). Contrary to the petitioner's assertions, a Yonkers Police Department incident report prepared on the day of the accident by a responding officer did not provide the appellants with actual knowledge of the essential facts constituting the claim. For reports to provide actual knowledge of the essential facts, "one must be able to readily infer from that report that a potentially actionable wrong...