IN RE: Manuel Rosario (2026)

Argued—November 18, 2025

DECISION & ORDER

O/

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.), entered March 22, 2024.  The order denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

On May 23, 2023, the petitioner allegedly was injured when he fell after coming into contact with the metal forks of a bobcat vehicle that was owned by the New York City Housing Authority (hereinafter NYCHA).  On October 5, 2023, the petitioner served a late notice of claim upon NYCHA without leave of court.  The petitioner subsequently commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem the late notice of claim timely served nunc pro tunc.  In an order entered March 22, 2024, 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” (Matter of Grabko v Rye Neck Union Free Sch. Dist., 236 AD3d 912, 912;  see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 460).  “In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, 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 Rojas v New York City Health & Hosps.  Corp., 127 AD3d 870, 872;  see General Municipal Law § 50–e[5];  Matter of Guerre v. New York City Tr. Auth., 226 AD3d 897, 898).  “Although the presence or absence of any one of the factors is not determinative, whether the municipality [or public corporation] acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter is of great importance” (Jara v. Elmhurst Hosp. Ctr., 213 AD3d 653, 654 [internal quotation marks omitted];  see Matter of Guerre v. New York City Tr. Auth., 226 AD3d at 898).

Here, NYCHA did not acquire timely, actual knowledge of the essential facts constituting the petitioner's claim.  A letter sent by the petitioner's counsel to NYCHA in June 2023 was inadequate to provide NYCHA with actual knowledge of the facts constituting the claim against it since the letter did not describe the cause of the petitioner's accident or how NYCHA was liable (see Matter of Guerre v. New York City Tr. Auth., 226 AD3d at 898–899;  Matter of Naar v. City of New York, 161 AD3d 1081, 1083;  cf.  Matter of Brown v. City of New York, 218 AD3d 466, 467).  The petitioner's contention that NYCHA acquired actual knowledge of the claim based on allegations that its employees “were directly involved in the accident ․ without more, such as a report or other evidence demonstrating that [NYCHA] acquired timely, actual knowledge of the essential facts constituting the claim, is without merit” (Etienne v. City of New York, 189 AD3d 1400, 1401–1402;  see Matter of Robinson v. City of New York, 208 AD3d 587, 588).  Furthermore, the late notice of claim, which was served upon NYCHA without leave of court 45 days after the 90–day statutory period had expired, was served too late to provide NYCHA with actual knowledge of the essential facts constituting the claim within a reasonable time after the 90–day statutory period expired (see Matter of Lang v. County of Nassau, 210 AD3d 773, 775;  Matter of Galicia v. City of New York, 175 AD3d 681, 683;  Matter of Naar v. City of New York, 161 AD3d at 1083).

Moreover, the petitioner failed to demonstrate a reasonable excuse for service of the late notice of claim.  The petitioner's claim of law office failure by his attorneys does not constitute a reasonable excuse for the failure to serve a timely notice of claim (see Matter of Rios v. County of Nassau, 212 AD3d 631, 633;  Matter of Lugo v. GNP Brokerage, 185 AD3d 824, 826;  Matter of Naar v. City of New York, 161 AD3d at 1083).

Finally, the petitioner failed to meet his burden of presenting some evidence or plausible argument that supports a finding that the delay would not substantially prejudice NYCHA in maintaining its defense on the merits (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 466;  Matter of Rayson v New York City Health & Hosps.  Corp., 165 AD3d 948, 949).

Accordingly, the Supreme Court properly denied the petition and, in effect, dismissed the proceeding.

BRATHWAITE NELSON, J.P., FORD, TAYLOR and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court