IN RE: Jennifer KAYAM (2025)

Order, Supreme Court, New York County (J. Machelle Sweeting, J.), entered on or about May 10, 2024, which granted the petition for leave to file a late notice of claim and deemed it timely filed and served nunc pro tunc, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the petition denied.

In this personal injury action, Supreme Court improvidently exercised its discretion in granting the petition and deeming the late notice of claim timely filed.  Petitioner failed to show that respondents had actual knowledge of the facts underlying the legal theories on which liability was predicated in the notice of claim (see Matter of Jaime v. City of New York 41 N.Y.3d 531, 540, 541, 213 N.Y.S.3d 730, 237 N.E.3d 796 [2024];  Mehra v. City of New York, 112 A.D.3d 417, 418, 976 N.Y.S.2d 55 [1st Dept. 2013];  Pineda v. City of New York, 305 A.D.2d 294, 294, 761 N.Y.S.2d 157 [1st Dept. 2003]).  Contrary to her contention, neither the police report, the NYPD complaint, nor the Department of Education occurrence report provided respondents with the facts underlying her theory of liability, as none of these documents linked the accident to any potentially actionable wrongdoing committed by them.

Although petitioner demonstrated that respondents would not suffer any prejudice by the delay in serving the notice of claim, as the alleged defect has not changed since the incident (see Matter of Richardson v. New York City Hous. Auth., 136 A.D.3d 484, 485, 24 N.Y.S.3d 308 [1st Dept. 2016], lv denied 28 N.Y.3d 905, 2016 WL 6209312 [2016]), her assertion that the severity of her injuries precluded her from serving notice, without any supporting medical documentation or evidence, was insufficient to constitute a reasonable excuse for her delay (see General Municipal Law § 50–e[5];  Matter of Jaime, 41 N.Y.3d at 539–541, 213 N.Y.S.3d 730, 237 N.E.3d 796).

Petitioner's submission to the motion court failed to include any medical records detailing her surgery and follow-up visits, and her petition stated that she was able to leave the apartment for her medical treatments and ultimately work remotely.  Furthermore, it is not clear from the petition when she retained counsel, and a lack of due diligence in determining the identity of the parties involved is not a reasonable excuse for the failure to serve a timely notice of claim (see Lugo v. New York City Hous. Auth., 282 A.D.2d 229, 724 N.Y.S.2d 28 [1st Dept. 2001]).

Accordingly, under the circumstances presented, the petition was improperly granted.