IN RE: Vilma GUTIERREZ (2025)

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the petitioner appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), dated March 1, 2023.  The order denied the petition and dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

On November 18, 2022, the petitioner commenced this proceeding against the City of New York pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc.  The petitioner alleged, inter alia, that she was injured on July 31, 2022, when she tripped and fell on a sidewalk defect in Queens.  In an order dated March 1, 2023, the Supreme Court denied the petition and dismissed the proceeding.  The petitioner appeals.

“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” (Lobos v. City of New York, 219 A.D.3d 720, 721, 195 N.Y.S.3d 80;  see General Municipal Law § 50–e[1][a]).  “General Municipal Law § 50–e(5) permits a court, in its discretion, to extend the time for a petitioner to serve a notice of claim” (Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460–461, 45 N.Y.S.3d 895, 68 N.E.3d 714).  In determining whether to grant leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether (1) the claimant demonstrated a reasonable excuse for the failure to timely serve the notice, (2) the municipal entity acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay in seeking leave would substantially prejudice the municipal entity in its ability to defend against the action (see General Municipal Law § 50–e[5];  Matter of Lang v. County of Nassau, 210 A.D.3d 773, 774, 178 N.Y.S.3d 178).

Here, the petitioner failed to demonstrate that the City obtained timely, actual knowledge of the essential facts constituting the claim (see Parker v. City of New York, 206 A.D.3d 936, 937, 170 N.Y.S.3d 603).  “In order for a municipality to have actual knowledge of the essential facts constituting the claim, ‘[it] must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim’ ” (Lobos v. City of New York, 219 A.D.3d at 721, 195 N.Y.S.3d 80, quoting Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 148, 851 N.Y.S.2d 218).  “Unsubstantiated and conclusory assertions that the municipality acquired timely actual knowledge of the essential facts constituting the claim through the contents of reports and other documentation are insufficient” (id. at 721–722, 195 N.Y.S.3d 80;  see Parker v. City of New York, 206 A.D.3d at 938, 170 N.Y.S.3d 603).  “ ‘[F]or a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation’ ” (Matter of C.N. v. City of New York, 208 A.D.3d 784, 786, 174 N.Y.S.3d 97, quoting Matter of Nunez v. Village of Rockville Ctr., 176 A.D.3d 1211, 1214–1215, 111 N.Y.S.3d 71).

Contrary to the petitioner's contention, a Big Apple map from 2003, which contains no information about the petitioner's fall and was created nearly two decades before the alleged incident, did not provide the City with “knowledge of the circumstances of the accident from which it could readily infer that a potentially actionable wrong had been committed by it” (Matter of Lang v. County of Nassau, 210 A.D.3d at 775, 178 N.Y.S.3d 178 [internal quotation marks omitted]).  Moreover, the late notice of claim, served upon the City without leave of court approximately one month after the 90–day statutory period had expired, was served too late to provide the City with actual knowledge of the essential facts constituting the claim within a reasonable time after the 90–day statutory period had expired (see Matter of Galicia v. City of New York, 175 A.D.3d 681, 683, 107 N.Y.S.3d 430;  Matter of Murray v. Village of Malverne, 118 A.D.3d 798, 799, 987 N.Y.S.2d 229).

The petitioner also failed to provide a reasonable excuse for the failure to serve a timely notice of claim.  The petitioner claims that she initially misidentified the cause of her fall due to confusion caused by a head injury, which led her attorneys to believe that the property owner rather than the City was liable.  However, the petitioner failed to provide adequate medical evidence explaining why her alleged injuries would cause such confusion (see Matter of Fernandez v. City of New York, 131 A.D.3d 532, 533, 15 N.Y.S.3d 166;  Matter of Bramble v. New York City Dept. of Educ., 125 A.D.3d 856, 858, 4 N.Y.S.3d 238).  In addition, under the circumstances, the failure of the petitioner's attorneys to timely discover the true cause of her fall amounts to “a lack of due diligence in investigating the matter, which does not constitute a reasonable excuse” (Matter of Poster v. Incorporated Vil. of New Hyde Park, 208 A.D.3d 585, 586, 173 N.Y.S.3d 309 [internal quotation marks omitted]).

The petitioner's conclusory statements in support of her contention that the City did not suffer substantial prejudice, including that there were no eyewitnesses and that there “is no issue about memories fading,” were inadequate to satisfy her burden with respect to this factor (see Matter of Pil–Yong Yoo v. County of Suffolk, 215 A.D.3d 852, 854, 188 N.Y.S.3d 517).  The condition on which the petitioner allegedly fell is generally considered “transitory” (Matter of Ashkenazie v. City of New York, 165 A.D.3d 785, 787, 85 N.Y.S.3d 508), and the petitioner failed to present any evidence that the City would not be substantially prejudiced by the delay.

Accordingly, the Supreme Court providently exercised its discretion in denying the petition and dismissing the proceeding.

DUFFY, J.P., GENOVESI, CHRISTOPHER and LANDICINO, JJ., concur.