IN RE: Anibal ORTIZ (2024)

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 1, 2021.  The order denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the petition is granted.

On January 16, 2020, the petitioner allegedly was injured when his vehicle came into contact with a bus owned and operated by the respondents, New York City Transit Authority and Metropolitan Transportation Authority.  The period to timely serve a notice of claim was tolled from March 20, 2020, through November 3, 2020, by the executive orders issued during the COVID–19 pandemic (see Matter of Dutra v. City of New York, 224 A.D.3d 682, 205 N.Y.S.3d 130;  Espinal v. Port Auth. of N.Y. & NJ, 213 A.D.3d 101, 102, 184 N.Y.S.3d 98).  Although the time to serve a timely notice of claim had not expired as of October 2020, the petitioner submitted an order to show cause in October 2020 for leave to serve a late notice of claim on the respondents.  However, the petitioner's order to show cause was not signed until January 2021.  Thereafter, the Supreme Court denied the petition and, in effect, dismissed the proceeding.  The petitioner appeals.

Pursuant to General Municipal Law § 50–e(1)(a), a party seeking to sue a public corporation must serve a notice of claim on the prospective defendant within 90 days after the claim arises (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460, 45 N.Y.S.3d 895, 68 N.E.3d 714;  Matter of Lugo v. GNP Brokerage, 185 A.D.3d 824, 824, 127 N.Y.S.3d 527).  In determining whether to grant a petition for leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether “(1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits” (Matter of Brown v. City of New York, 202 A.D.3d 783, 783, 158 N.Y.S.3d 864 [internal quotation marks omitted];  see General Municipal Law § 50–e[5];  Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 463, 45 N.Y.S.3d 895, 68 N.E.3d 714).

Here the petitioner demonstrated a reasonable excuse for the delay, i.e., the COVID–19 pandemic, the tolls resulting therefrom, and the delay by the Supreme Court in signing the petitioner's order to show cause.

Further, the petitioners met their burden of providing a plausible argument supporting a finding of no substantial prejudice.  The happening of the accident and relevant facts were documented in a police report, and any prejudice was the result of delays resulting from the COVID–19 pandemic, not the petitioner's conduct.  Accordingly, the petitioner made the requisite showing of lack of prejudice, and the respondents failed to make a particularized evidentiary showing of substantial prejudice in response (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 466, 45 N.Y.S.3d 895, 68 N.E.3d 714).

Under the particular circumstances of this case, the denial of leave to serve a late notice of claim was an improvident exercise of discretion.  Accordingly, the Supreme Court should have granted the petition for leave to serve a late notice of claim.

BARROS, J.P., MALTESE, WARHIT and LANDICINO, JJ., concur.