POWELL v. et al., Respondent. (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  In this action seeking damages for personal injuries that she allegedly sustained while exiting a bus owned and operated by Central New York Regional Transportation Authority (respondent), claimant appeals from an order that denied her application for leave to serve a late notice of claim.  We affirm.

A notice of claim must be served within 90 days after the claim accrues, although a court may grant leave extending that time (see General Municipal Law § 50–e [1][a];  [5] ).  The decision whether to grant such leave requires “consideration of all relevant facts and circumstances,” including the “nonexhaustive list of factors” in section 50–e (5) (Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 539, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006] ).  The three main factors are “whether the claimant has shown a reasonable excuse for the delay, whether the [respondent] had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the [respondent]” (Matter of Friend v. Town of W. Seneca, 71 A.D.3d 1406, 1407, 895 N.Y.S.2d 895 [4th Dept. 2010];  see generally § 50–e [5] ).  Although “the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether the [public corporation] received actual knowledge of the facts constituting the claim in a timely manner” (Matter of Szymkowiak v. New York Power Auth., 162 A.D.3d 1652, 1654, 80 N.Y.S.3d 565 [4th Dept. 2018] [internal quotation marks omitted] ), including knowledge of the injuries or damages claimed (see Santana v. Western Regional Off–Track Betting Corp., 2 A.D.3d 1304, 1305, 770 N.Y.S.2d 258 [4th Dept. 2003], lv denied 2 N.Y.3d 704, 778 N.Y.S.2d 774, 811 N.E.2d 36 [2004] ).  The claimant bears the burden of demonstrating that the respondent had actual timely knowledge (see Szymkowiak, 162 A.D.3d at 1654, 80 N.Y.S.3d 565).  Absent a “clear abuse” of the court's broad discretion, “the determination of an application for leave to serve a late notice of claim will not be disturbed” (Matter of Hubbard v. County of Madison, 71 A.D.3d 1313, 1315, 897 N.Y.S.2d 538 [3d Dept. 2010] [internal quotation marks omitted] ).

Here, claimant failed to meet her burden of demonstrating that respondent had actual knowledge of the incident, including knowledge of claimant's injuries, within 90 days of the accident.  Indeed, the record establishes that claimant did not say anything to the bus driver when the accident allegedly occurred and that it was not obvious that she was injured (cf. generally Matter of Ragland v. New York City Hous. Auth., 201 A.D.2d 7, 11, 613 N.Y.S.2d 937 [2d Dept. 1994] ).  Claimant's only communication with respondent about the incident within the statutory period was an anonymous telephone call that she made to respondent's general phone number, during which she did not indicate that an accident had occurred or describe her injuries (see Kennedy v. Oswego City Sch. Dist., 148 A.D.3d 1790, 1791, 50 N.Y.S.3d 229 [4th Dept. 2017] ).  In addition, her untimely notice of claim incorrectly identified the date on which the accident allegedly occurred.  Finally, claimant became aware shortly after the incident that she was injured (cf. Shane v. Cent. N.Y. Regional Transp. Auth., 79 A.D.3d 1820, 1821, 914 N.Y.S.2d 810 [4th Dept. 2010] ), and we reject her contention that the nature of her injuries, including a torn meniscus and a bone contusion, constituted a reasonable excuse for failing to comply with the notice of claim requirement (cf. Matter of Heredia v. New York City Health & Hosps. Corp., 159 A.D.3d 663, 664, 70 N.Y.S.3d 832 [1st Dept. 2018] ).  Consequently, Supreme Court did not abuse its discretion in denying her application for leave to serve a late notice of claim.