IN RE: Stephanie MOORE (2025)

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, Nassau County (Felice J. Muraca, J.), entered July 31, 2023.  The order denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

On July 21, 2022, the petitioner allegedly was injured when she tripped and fell on a cracked walkway leading to the entrance of Nassau University Medical Center (hereinafter the hospital).  In February 2023, the petitioner commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim on the hospital and Nassau Healthcare Corporation (hereinafter together the respondents).  In an order entered July 31, 2023, the Supreme Court denied the petition and, in effect, dismissed the proceeding.  The petitioner appeals.

“The determination of an application for leave to serve a late notice of claim is left to the sound discretion of the court” (Matter of Guevara v. Village of Hempstead Police Dept., 227 A.D.3d 1075, 1075–1076, 213 N.Y.S.3d 102).  “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” (Matter of Alexander v. County of Nassau, 227 A.D.3d 888, 889, 211 N.Y.S.3d 473 [internal quotation marks omitted];  see General Municipal Law § 50–e[5];  Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 463–464, 45 N.Y.S.3d 895, 68 N.E.3d 714).  “ ‘While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance’ ” (Matter of Alexander v. County of Nassau, 227 A.D.3d at 889, 211 N.Y.S.3d 473, quoting Parker v. City of New York, 206 A.D.3d 936, 938, 170 N.Y.S.3d 603).

Contrary to the petitioner's contention, the evidence submitted in support of the petition failed to establish that the respondents acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter (see Matter of Lang v. County of Nassau, 210 A.D.3d 773, 774, 178 N.Y.S.3d 178).  “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 720, 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).  “Knowledge of ‘the accident itself and the seriousness of the injury does not satisfy this enumerated factor where those facts do not also provide the public corporation with knowledge of the essential facts constituting the claim’ ” (I.N. v. City of Yonkers, 203 A.D.3d 721, 723, 160 N.Y.S.3d 630, quoting Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 155, 851 N.Y.S.2d 218).

Here, the petitioner's medical records prepared on the date of the accident indicated that the petitioner tripped and fell outside of the hospital.  However, the medical records did not provide the respondents with actual knowledge of the essential facts underlying the legal theories in the notice of claim that the petitioner fell due to a cracked or defective portion of the walkway and that the respondents were negligent in, among other things, failing to adequately repair and maintain the walkway or to provide adequate warning signs of the allegedly defective walkway (see I.N. v. City of Yonkers, 203 A.D.3d at 723, 160 N.Y.S.3d 630;  Matter of Maldonado v. City of New York, 152 A.D.3d 522, 523, 58 N.Y.S.3d 506 ;  Matter of Guiliano v. Town of Oyster Bay, 244 A.D.2d 408, 409, 664 N.Y.S.2d 314).  Moreover, the petitioner's conclusory and unsubstantiated assertion that she reported the accident to unidentified employees of the hospital, without evidence of any specific information she may have reported, was insufficient to impute actual knowledge of the essential facts constituting the claim to the respondents (see Matter of Ippolito v. City of New York, 230 A.D.3d 683, 685, 218 N.Y.S.3d 386;  Lobos v. City of New York, 219 A.D.3d at 722, 195 N.Y.S.3d 80;  Seif v. City of New York, 218 A.D.2d 595, 597, 630 N.Y.S.2d 742).

Furthermore, the petitioner's ignorance of the statutory requirement to serve a notice of claim within the 90–day period does not constitute a reasonable excuse for her failure to timely serve the notice of claim upon the respondents (see Matter of Nunez v. Village of Rockville Ctr., 176 A.D.3d 1211, 1214, 111 N.Y.S.3d 71;  Matter of Narcisse v. Incorporated Vil. of Cent. Islip, 36 A.D.3d 920, 921–922, 829 N.Y.S.2d 578;  Saafir v. Metro–North Commuter R.R. Co., 260 A.D.2d 462, 463, 688 N.Y.S.2d 224).

Finally, the petitioner failed to sustain her initial burden of presenting “some evidence or plausible argument” (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) that the respondents will not be substantially prejudiced in their ability to defend against the action (see Matter of Lang v. County of Nassau, 210 A.D.3d at 775–776, 178 N.Y.S.3d 178;  Matter of Bermudez v. City of New York, 167 A.D.3d 733, 735, 89 N.Y.S.3d 289;  Matter of Maldonado v. City of New York, 152 A.D.3d at 523, 58 N.Y.S.3d 506).

The parties' remaining contentions either are without merit, need not be reached in light of our determination, or are improperly raised for the first time on appeal and thus, not properly before this Court.

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

BARROS, J.P., WOOTEN, DOWLING and LANDICINO, JJ., concur.