Palisay v. City of N.Y.

Decision Date29 May 2019
Docket Number2018–00446,Index No. 85144/17
Citation172 A.D.3d 1379,99 N.Y.S.3d 651 (Mem)
Parties In the Matter of Grace PALISAY, Appellant, v. CITY OF NEW YORK, et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Ingrid R. Gustafson and Talya M. Seidman of counsel), for respondents.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Richmond County (Thomas P. Aliotta, J.), dated November 6, 2017. The order denied the petition.

ORDERED that the order is affirmed, with costs.

Timely service of a notice of claim is a condition precedent to a lawsuit sounding in tort against a public corporation (see Matter of Bermudez v. City of New York, 167 A.D.3d 733, 89 N.Y.S.3d 289 ). Pursuant to General Municipal Law § 50–e(5), upon application, the Supreme Court, in its discretion, may extend the time to serve a notice of claim upon a public corporation as required by General Municipal Law § 50–e(1). In determining whether to extend the time to serve a notice of claim, the court must consider all relevant circumstances, including whether the public corporation received actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the claimant has a reasonable excuse for the failure to serve a timely notice of claim, and whether the delay would substantially prejudice the public corporation in its defense on the merits (see General Municipal Law § 50–e[5] ; Matter of Bermu dez v. City of New York, 167 A.D.3d 733, 89 N.Y.S.3d 289 ; Matter of Cuccia v. Metropolitan Transp. Auth., 150 A.D.3d 849, 849–850, 55 N.Y.S.3d 83 ).

Here, the petitioner failed to establish that the respondents had actual notice of the essential facts constituting her claim, as opposed to merely notice of the subject accident and injury (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 147–148, 851 N.Y.S.2d 218 ; see also Matter of Maldonado v. City of New York, 152 A.D.3d 522, 523, 58 N.Y.S.3d 506 ; Indar v. City of New York, 71 A.D.3d 635, 636, 897 N.Y.S.2d 156 ; Matter of Julie F. v. City of New York, 50 A.D.3d 794, 795, 855 N.Y.S.2d 622 ). Further, the petitioner failed to establish a reasonable excuse for failing to serve a timely notice of claim (see Matter of Julie F. v. City of New York, 50 A.D.3d at 796, 855 N.Y.S.2d 622 ; Matter of Cotten v. County of Nassau, 307 A.D.2d 965, 966, 763 N.Y.S.2d 474 ; see also Matter of Cuccia v. Metropolitan Transp. Auth., 150 A.D.3d at 850, 55 N.Y.S.3d 83 ). Finally, the petitioner...

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