Shavreshyan v. City of New York

• Court: New York Supreme Court — Appellate Division
• Citation: Shavreshyan v. City of New York, 2022 NY Slip Op 4303, Index No. 508146/20, No. 2020-05501 (N.Y. App. Div. Jul 06, 2022)
• Decision Date: 06 July 2022
• Docket Number: 2020-05501,Index No. 508146/20,No. 2020-05501
• Parties: In the Matter of Naira Zhorayi Shavreshyan, appellant, v. City of New York, respondent.

2022 NY Slip Op 04303

In the Matter of Naira Zhorayi Shavreshyan, appellant, v. City of New York, respondent.

No. 2020-05501, Index No. 508146/20

Supreme Court of New York, Second Department

July 6, 2022

Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP New York, NY [Brian J. Isaac, Paul H. Seidenstock, and Kelly Breslauer], of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Melanie T West and Eva L. Jerome of counsel), for respondent.

HECTOR D. LASALLE, P.J. SHERI S. ROMAN, LINDA CHRISTOPHER, DEBORAH A. DOWLING, 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, Kings County (Rosemarie Montalbano, J.), dated July 8, 2020. The order denied the petition and dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

The petitioner allegedly was injured on January 20, 2019, when she tripped and fell over a raised sidewalk flag in Brooklyn. On May 29, 2020, approximately 16 months later, the petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim upon the City of New York. In support of the petition, the petitioner submitted, inter alia, 22 undated photographs of the alleged defective condition. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.

"Timely service of a notice of claim is a condition precedent to a lawsuit sounding in tort against a municipal entity" (Matter of Bermudez v City of New York, 167 A.D.3d 733, 733-734). "In determining whether to extend the time to serve a notice of claim, the court will consider whether (1) the claimant has a reasonable excuse for the failure to serve a timely notice of claim and for the delay in seeking leave to serve a late notice of claim, (2) 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, and (3) the delay would substantially prejudice the public corporation in its defense on the merits" (Durand v MV Transp Inc., 186 A.D.3d 564, 565). "Neither the presence nor absence of any one factor is determinative, although it is generally recognized that the question of whether the municipal entity timely acquired actual knowledge is of great importance" (Matter of Zelin v Blind Brook-Rye Union Free Sch. Dist., 164 A.D.3d 1352, 1353; see Matter of McVea v County of Orange, 186 A.D.3d 1221, 1222).

Here the failure of the petitioner's attorney to ascertain that the City may be the party responsible for the alleged defective condition was attributable to a lack of due diligence, and thus, does not constitute a reasonable excuse for the failure to timely serve the notice of claim (see Matter of Suraty v City of New York, 188 A.D.3d 702, 703; Matter of Perez v City of New York, 175 A.D.3d 1534, 1536; Matter of Mishkin v City of New York, 175 A.D.3d 684, 685; Matter of Ramos v New York City Hous. Auth., 162 A.D.3d 884, 885; Matter of Portnov v City of Glen Cove, 50 A.D.3d 1041, 1043). Moreover, the petitioner failed to proffer any explanation for the delay between the time that her attorney discovered the error and the time the petitioner commenced the instant proceeding (see Matter of Bramble v New York City Dept of Educ., 125 A.D.3d 856, 858; Kelly v City of New York, 153 A.D.3d 1388, 1389; Kuterman v City of New York, 121 A.D.3d 646, 647).

The petitioner concedes that the City did not receive actual knowledge of the essential facts...