| Matter of Cruz v City of New York |
| 2017 NY Slip Op 02789 [149 AD3d 835] |
| April 12, 2017 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Juan A. Cruz, Appellant, v City of NewYork, Respondent. |
Cherny & Podolsky, PLLC, Brooklyn, NY (Steven V. Podolsky of counsel), forappellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Aaron M. Bloom and SimpsonThacher & Bartlett LLP [Paul Gluckow and Alexander Li], of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to servea late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the petitionerappeals from an order of the Supreme Court, Kings County (Genovesi, J.), dated June 26, 2015,which denied the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,that branch of the petition which was to deem a late notice of claim timely served nunc pro tuncis granted, and that branch of the petition which was for leave to serve a late notice of claim isdenied as academic.
Under General Municipal Law § 50-e (5), in determining whether to grant anextension of time to serve a late notice of claim, the court must consider, in particular, whetherthe public corporation acquired actual knowledge of the essential facts constituting the claimwithin 90 days of the accrual of the claim or within a reasonable time thereafter (seeGeneral Municipal Law § 50-e [5]; Wally G. v New York City Health & Hosps. Corp. [Metro. Hosp.],27 NY3d 672, 675 [2016]; Matterof Lawhorne v City of New York, 133 AD3d 856 [2015]; Matter of Murray v Village ofMalverne, 118 AD3d 798, 799 [2014]). Additional factors in determining whether togrant such an extension include whether the petitioner demonstrated a reasonable excuse for thefailure to serve a timely notice of claim and for the subsequent delay in seeking leave to serve alate notice of claim, and whether the public corporation was substantially prejudiced by the delayin its ability to maintain its defense on the merits (see General Municipal Law§ 50-e [5]; Williams vNassau County Med. Ctr., 6 NY3d 531, 535 [2006]; Matter of Murray v Village ofMalverne, 118 AD3d at 799; Matterof Sanchez v City of New York, 116 AD3d 703, 704 [2014]).
Here, the City of New York acquired actual knowledge of the essential facts constituting theclaim within 90 days of the accident, since its employees were directly involved in the accident,and the police accident report gave reasonable notice from which it could be inferred that apotentially actionable wrong had been committed by the City and that the petitioner was injuredas a result thereof (see Vehicle and Traffic Law § 1104 [b] [2]; Matter of Lavender v Garden City UnionFree School Dist., 93 AD3d 670, 671 [2012]; Matter of St. Paul Guardian Ins. Corp. v Pocatello Fire Dist., 90 AD3d761, 762 [2011]; Miranda v New York City Tr. Auth., 262 AD2d 199 [1999]).Furthermore, the City received a late notice of claim 22 days after the expiration of the 90-dayperiod, which it [*2]accepted, and informed the petitioner that itwould do its best to investigate and, if possible, settle the claim (see Brunson v New York City Health& Hosps. Corp., 144 AD3d 854, 855-856 [2016]; Matter of Gershanow v Town ofClarkstown, 88 AD3d 879, 880 [2011]; Matter of Ambrico v Lynbrook Union Free School Dist., 71 AD3d762, 763 [2010]).
Moreover, the petitioner made an initial showing that the City was not substantiallyprejudiced, since the City acquired timely, actual knowledge of the essential facts constituting theclaim through the police accident report and became aware of the negligence claim less than onemonth after the expiration of the 90-day period (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d455, 467 [2016]; Brunson v New York City Health & Hosps. Corp., 144 AD3dat 856; Kim L. v Port Jervis City SchoolDist., 77 AD3d 627, 629-630 [2010]). In opposition to the petition, the City providedonly its attorney's affirmation, which was insufficient to overcome the petitioner's showing of alack of substantial prejudice (see Matterof Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455 [2016]; Kim L. v PortJervis City School Dist., 77 AD3d at 630).
Although the petitioner did not demonstrate a reasonable excuse for his failure to serve atimely notice of claim and for the delay in filing the petition, the absence of a reasonable excusefor the delays does not bar the granting of that branch of the petition which was to deem theproposed notice of claim timely served nunc pro tunc where, as here, there is actual knowledgeand an absence of substantial prejudice (see Matter of Lavender v Garden City Union FreeSchool Dist., 93 AD3d at 671; Matter of St. Paul Guardian Ins. Corp. v Pocatello Fire Dist., 90 AD3d761 [2011]; Matter of Whittaker vNew York City Bd. of Educ., 71 AD3d 776, 778 [2010]).
Accordingly, that branch of the petition which was to deem the proposed notice of claimtimely served nunc pro tunc should have been granted.
In light of our determination, that branch of the petition which was for leave to serve a latenotice of claim is academic. Leventhal, J.P., Cohen, Hinds-Radix and Connolly, JJ., concur.