IN RE: Jenny M. Berrezueta QUILLI (2026)

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 (1) an order of the Supreme Court, Queens County (Tracy Catapano–Fox, J.), entered April 1, 2021, and (2) an order of the same court entered August 17, 2021.  The order entered April 1, 2021, denied the petition and dismissed the proceeding.  The order entered August 17, 2021, denied the petitioner's motion for leave to renew and reargue the petition.

ORDERED that the order entered April 1, 2021, is affirmed;  and it is further,

ORDERED that the appeal from so much of the order entered August 17, 2021, as denied that branch of the petitioner's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument (see Ahmad v. New York City Dept. of Educ., 177 A.D.3d 834, 835, 113 N.Y.S.3d 162);  and it is further,

ORDERED that order entered August 17, 2021, is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the respondent City of New York.

On October 30, 2019, the petitioner allegedly sustained personal injuries when she was struck by a vehicle operated by a nonparty driver, while crossing 55th Avenue in Queens.  On March 19, 2020, the petitioner commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim upon the respondent City of New York and another party.  In an order entered April 1, 2021, the Supreme Court denied the petition and dismissed the proceeding.  The petitioner subsequently moved for leave to renew and reargue her petition.  In an order entered August 17, 2021, the court denied the petitioner's motion.  The petitioner appeals from both orders.

“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 DeGarmo v. City of New York, 237 A.D.3d 1092, 1093, 233 N.Y.S.3d 589).  “In determining whether to grant a petition 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” (id. [internal quotation marks omitted];  see General Municipal Law § 50–e[5];  Lobos v. City of New York, 219 A.D.3d 720, 721, 195 N.Y.S.3d 80).  “ ‘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 DeGarmo v. City of New York, 237 A.D.3d at 1093, 233 N.Y.S.3d 589, quoting Lobos v. City of New York, 219 A.D.3d at 721, 195 N.Y.S.3d 80).

Here, the petitioner failed to demonstrate a reasonable excuse for the failure to timely serve a notice of claim.  The petitioner annexed no medical records or other supporting evidence to her petition to support her claim that her injuries and hospitalization prevented her from complying with the 90–day deadline to serve a notice of claim (see Matter of Crowder v. New York City Sch. Constr. Auth., 230 A.D.3d 490, 491–492, 217 N.Y.S.3d 130;  Matter of Fernandez v. City of New York, 131 A.D.3d 532, 533, 15 N.Y.S.3d 166).  Where, as here, the record demonstrates that her injuries did not prevent her from hiring prior counsel during that time, the petitioner failed to demonstrate that she was incapacitated to such an extent that she could not have complied with the 90–day deadline (see Matter of Crowder v. New York City Sch. Constr. Auth., 230 A.D.3d at 492, 217 N.Y.S.3d 130;  Matter of Dutra v. City of New York, 224 A.D.3d 682, 683, 205 N.Y.S.3d 130).  Moreover, the petitioner's claim of law office failure by her former attorney does not constitute a reasonable excuse for the failure to serve a timely notice of claim and the delay in commencing this proceeding (see Matter of Sumi v. Village of Stewart Manor, 219 A.D.3d 490, 491, 194 N.Y.S.3d 120;  Matter of Lugo v. GNP Brokerage, 185 A.D.3d 824, 826, 127 N.Y.S.3d 527).  The attorney's affirmation annexed to the petition was not based upon personal knowledge insofar as it discussed events alleged to have occurred before counsel was retained on February 5, 2020.  Accordingly, that portion of the affirmation discussing those alleged events has no evidentiary value (see Nerayoff v. Khorshad, 168 A.D.3d 866, 867, 89 N.Y.S.3d 909).

The petitioner further failed to demonstrate that the City had actual knowledge of the essential facts constituting the claim.  “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;  see Matter of Ramos v. Board of Educ. of the City of N.Y., 148 A.D.3d 909, 911, 49 N.Y.S.3d 539).  “ ‘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’ ” (Matter of Gutierrez v. City of New York, 237 A.D.3d 819, 820, 232 N.Y.S.3d 524, quoting Lobos v. City of New York, 219 A.D.3d at 721–722, 195 N.Y.S.3d 80).  Here, a police accident report was not sufficient to provide the City with actual notice of the essential facts constituting the claim as the report documented the accident with the nonparty driver and failed to connect the petitioner's injuries to any alleged negligent conduct on the part of the City. Moreover, an investigation by the District Attorney's office into the nonparty driver is insufficient to establish that the City acquired actual notice of the essential facts constituting this claim (see Matter of Jaime v. City of New York, 41 N.Y.3d 531, 543 n.3, 213 N.Y.S.3d 730, 237 N.E.3d 796;  Brown v. City of New York, 60 N.Y.2d 897, 898, 470 N.Y.S.2d 573, 458 N.E.2d 1250).

Further, the petitioner failed to meet her initial burden of coming forward with “some evidence or plausible argument” supporting a finding that the City was not substantially prejudiced by the delay (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 45 N.Y.S.3d 895, 68 N.E.3d 714;  Lobos v. City of New York, 219 A.D.3d at 722, 195 N.Y.S.3d 80).  Accordingly, the Supreme Court properly denied the petition.

The Supreme Court also properly denied that branch of the petitioner's motion which was for leave to renew the petition, as the petitioner failed to offer a reasonable justification for failing to offer the purported new facts and evidence in support of her petition (see CPLR 2221[e][2];  Matter of Crawford v. City of New York, 237 A.D.3d 1089, 1092, 233 N.Y.S.3d 592).  The court properly declined to consider the petitioner's medical records, which were improperly submitted for the first time annexed to an affirmation in reply on the petitioner's motion for leave to renew and reargue the petition (see Matter of Crawford v. City of New York, 237 A.D.3d at 1091, 233 N.Y.S.3d 592;  Matter of Wright v. City of New York, 99 A.D.3d 717, 719, 951 N.Y.S.2d 750).

GENOVESI, J.P., WAN, VENTURA and QUIRK, JJ., concur.