CASSIDY v. NEW YORK CITY TRANSIT AUTHORITY (2025)

Amended order, Supreme Court, New York County (Denise M. Dominguez, J.), entered April 17, 2024, which denied plaintiff's motion for leave to serve a late notice of claim, and order, same court and Justice, entered July 7, 2024, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to renew, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in denying plaintiff leave to serve a late notice of claim because plaintiff failed to submit any evidence establishing that defendants acquired actual knowledge of the essential facts constituting the claim within 90 days of the accrual of the claim, or within a reasonable time thereafter (General Municipal Law § 50–e [5]).  Plaintiff's allegation that defendants investigated the accident and therefore must have acquired the requisite knowledge of the essential facts is unpersuasive, because “the alleged existence of records does not suffice to establish actual knowledge” (Matter of Jaime v. City of New York, 41 N.Y.3d 531, 543, 213 N.Y.S.3d 730, 237 N.E.3d 796 [2024]).  That plaintiff served an untimely notice of claim on defendants five days after the 90–day statutory time period expired did not establish that defendants had actual knowledge of his claims because “[t]his late service, without leave of court, was a nullity” (Bobko v. City of New York, 100 A.D.3d 439, 440, 953 N.Y.S.2d 214 [1st Dept. 2012]).  Furthermore, that notice did not make any connection between the incident and any negligence on the part of defendants (see Alexander v. New York City Tr. Auth., 200 A.D.3d 509, 510, 155 N.Y.S.3d 317 [1st Dept. 2021]).

Insofar as plaintiff argued that defendants would not be substantially prejudiced by the late filing because they acquired timely actual knowledge, plaintiff's failure to establish actual knowledge is fatal (see Matter of Jaime, 41 N.Y.3d at 543–544, 213 N.Y.S.3d 730, 237 N.E.3d 796).  Because plaintiff failed to meet his initial burden of demonstrating the absence of substantial prejudice, defendants were not required to make a particularized evidentiary showing of prejudice (see Alexander, 200 A.D.3d at 510, 155 N.Y.S.3d 317).

Further, plaintiff's “excuse of law office failure is not a reasonable excuse for failing to timely serve a notice of claim” (see Colarossi v. City of New York, 118 A.D.3d 612, 612, 989 N.Y.S.2d 24 [1st Dept. 2014]).

Supreme Court properly denied plaintiff's motion to renew because the motion was made after the one-year-90-day limitations period had expired and the court therefore lacked discretion to grant leave to file a late notice of claim (see Fornabaio v. City of New York, 41 A.D.3d 125, 125, 837 N.Y.S.2d 88 [1st Dept. 2007]).  Nor may an untimely motion be deemed to relate back to the date when the originally timely motion was made (see id.).  Finally, the record is devoid of evidence of “affirmative wrongdoing” by defendants that would support the application of equitable estoppel against them (see Yessenia D. v. New York City Health & Hosps. Corp., 139 A.D.3d 454, 454, 29 N.Y.S.3d 788 [1st Dept. 2016]).

We have considered plaintiff's remaining contentions and find them unavailing.