Requena v. The N.Y.C. Dep't of Educ.

• Docket Number: Index No. 150577/2023,Motion Seq. No. 001,NYSCEF Doc. No. 14
• Decision Date: 21 December 2023
• Citation: 2023 NY Slip Op 34493 (U)
• Parties: ROSALYN REQUENA, Petitioner, v. THE NEW YORK CITY DEPARTMENT OF EDUCATION, THE CITY OF NEW YORK, THE NEW YORK CITY SCHOOL BUS UMBRELLA SERVICES, INC. Respondents.
• Court: New York Supreme Court

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2023 NY Slip Op 34493(U)

ROSALYN REQUENA, Petitioner,
v.
THE NEW YORK CITY DEPARTMENT OF EDUCATION, THE CITY OF NEW YORK, THE NEW YORK CITY SCHOOL BUS UMBRELLA SERVICES, INC. Respondents.

Index No. 150577/2023, Motion Seq. No. 001, NYSCEF Doc. No. 14

Supreme Court, New York County

December 21, 2023

Unpublished Opinion

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DECISION + ORDER ON MOTION

Hon. Denise M. Dominguez, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 10, 11, 12, 13 were read on this motion to/for LEAVE TO FILE.

Upon the foregoing documents, the Petition to serve a late notice of claim on the Respondents is denied.

A court, pursuant to General Municipal Law §50-e, has discretion to grant or deny a timely application for an extension of time to serve a late notice of claim upon a public entity (General Municipal Law §50-e [5]; CPLR 217-a; Pierson v. City of New York, 56 N.Y.2d 950 [1992]).

In evaluating whether leave to file a late notice of claim should be granted, "[t]he key factors which the court must consider... are whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame, whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense.... the presence or absence of any one factor is not determinative... and the absence of a reasonable excuse is not fatal." (Dubowy v. City of New York, 305 A.D.2d 320, 321, 759 N.Y.S.2d 325 [1^st Dept 2003] internal citations omitted', see Matter of Morris, 88 A.D.2d 956, 957, 451 N.Y.S.2d 448 [2d Dept 1982], affd sub nom. Morris v. Suffolk Cnty., 58 N.Y.2d 767, 445 N.E.2d 214 [1982]; See Matter of Porcaro v. City of New York, 20 A.D.3d 357, 799 N.Y.S.2d 450 [1^st Dept 2005]).

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Great weight must be given to whether the public entity acquired actual knowledge of the essential facts constituting the claim within ninety (90) days or within a reasonable time thereafter (General Municipal Law §50-e [5]; see Bertone Commissioning v City of New York, 27 A.D.3d 222 [1^st Dept 2006]; Matter of Orozco v City of New York, 200 A.D.3d 559, 161 N.Y.S.3d 1 [1st Dept 2021], leave to appeal granted, 39 N.Y.3d 903, 199 N.E.3d 481 [2022]). However, the mere "... knowledge of the facts underlying an occurrence does not constitute knowledge of the claim. 'What satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the 'claim"." (Chattergoon v. New York City Hous. Auth., 161 A.D.2d 141, 142, 554 N.Y.S.2d 859, 860 [1990], affd, 78. N.Y.2d 958, 580 N.E.2d 406 [1991], quoting Thomann v. City of Rochester, 256 N.Y. 165, 172, 176 [1931]; see also Kim v. City of New York, 256 A.D.2d 83, 681 N.Y.S.2d 247 [1st Dept 1998]).

Additionally, it is the burden of the petitioner to demonstrate that the late notice of the claim will not be substantially prejudicial. (Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 68 N.E.3d 714 [2016]). "Once there has been an initial showing regarding the lack of substantial prejudice toward the public corporation or municipality, the public corporation or municipality is required to make a 'particularized or persuasive showing that the delay caused them substantial prejudice'." (Orozco v. City of New York, 200 A.D.3d 559, 563, 161 N.Y.S.3d 1 (2021), leave to appeal granted, 39 N.Y.3d 903, 199 N.E.3d 481 [2022], quoting Lawton v Town of Orchard Park, 138 A.D.3d 1428, 1428 [4th Dept 2016]; see (Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 68 N.E.3d 714 [2016]).

Upon review, the Petitioner has not met the burden in establishing...