IN RE: Linda Card (2026)

Argued—October 29, 2025

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50–e for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Rockland County (Rolf M. Thorsen, J.), dated October 31, 2023.  The order denied the petitioner's motion for leave to serve a late notice of claim, denied the petition, and dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

On June 17, 2022, while attending her grandson's graduation ceremony at North Rockland High School, the petitioner allegedly fell into a hole and sustained personal injuries.  On June 22, 2022, the petitioner forwarded photographs of the hole to the respondent's director of facilities, who directed the petitioner to “write a statement of the events that occurred” to the respondent's assistant superintendent of business and assured the petitioner that “immediate action ha[d] been taken to prevent this from happening in the future.”

On June 24, 2022, the petitioner sent an email to the assistant superintendent of business as instructed.  In her email, the petitioner stated that she “suddenly felt something ‘swallow’ [her] ankle/foot” and that she fell on her side.  The petitioner explained that her daughter “slowly lifted” the petitioner's “leg/foot out of the hole” and gave the petitioner an ice pack for her “cut bruised ankle that hurt.”  The petitioner further explained that her grandson found three “rusty sharp scrap metal” pieces in the hole and that her daughter covered the hole with the daughter's backpack.

The petitioner's email further stated that a security guard alerted emergency medical technicians (hereinafter the EMTs), who had been present for the graduation ceremony.  According to the petitioner, the EMTs took the petitioner's blood pressure and pulse, checked her cut, and asked about tetanus vaccinations, and the petitioner refused to be taken to the hospital because she was able to stand.

In July 2023, the petitioner commenced this proceeding pursuant to General Municipal Law § 50–e and moved for leave to serve a late notice of claim.  The petitioner's proposed notice of claim alleged that she “sustained severe permanent personal injuries” due to the respondent's negligent ownership, maintenance, management, operation, and control of the premises.

In an order dated October 31, 2023, the Supreme Court denied the petitioner's motion, denied the petition, and dismissed the proceeding.  The petitioner appeals.

“Generally, in order to commence an action sounding in tort against a school district, a plaintiff must file a notice of claim within 90 days after the claim arises” (M.S. v Rye Neck Union Free Sch. Dist., 212 AD3d 857, 858;  see Education Law § 3813[2];  General Municipal Law § 50–e[1][a] ).  “The purpose of the notice of claim is to alert the [public corporation] to the existence of the claim so that it can promptly investigate and preserve any relevant evidence before the passage of time renders such evidence unavailable or lessens its probative value” (Matter of Jaime v. City of New York, 41 NY3d 531, 539).  “In furtherance of that purpose, the service of a notice of claim triggers the [public corporation's] right to compel oral and physical examinations of a claimant before an action is commenced” (id.).

“Pursuant to General Municipal Law § 50–e(5), the Supreme Court, in its discretion, may extend the time to serve a notice of claim upon a public corporation as required by General Municipal Law § 50–e(1)” (Matter of Arvizu v. New York City Tr. Auth., 239 AD3d 643, 643).  “The burden of production is on the petitioner in a special proceeding (see CPLR 409[a] ), and the court applies settled summary judgment standards under which the party seeking relief must establish entitlement to judgment as a matter of law by submitting admissible evidence” (Matter of Jaime v. City of New York, 41 NY3d at 541–542 [citation omitted] ).

“In determining whether to grant leave, 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 of when the claim arose or within a reasonable time thereafter;  (2) the claimant was an infant when the claim arose;  (3) the claimant demonstrated a reasonable excuse for failing to serve a timely notice of claim;  and (4) ‘the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits' ” (Matter of Arvizu v. New York City Tr. Auth., 239 AD3d at 643–644, quoting General Municipal Law § 50–e[5] ).  “While no single factor is necessarily determinative, ‘whether the [public corporation] timely acquired actual knowledge is of great importance’ ” (Matter of Cooke v Mamaroneck Union Free Sch. Dist., 238 AD3d 1034, 1035, quoting C.A. v. Academy Charter Sch., 216 AD3d 1075, 1077).  “[W]hile the decision to grant or deny leave to file a late notice of claim is committed to the court's ‘broad discretion,’ its determination ‘must be supported by record evidence’ ” (Matter of Jaime v. City of New York, 41 NY3d at 542, quoting Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 465).

Contrary to the petitioner's contention, the evidence submitted in support of the petition failed to establish that the respondent received timely, actual knowledge of the essential facts constituting her claim.  “In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim;  the public corporation need not have specific notice of the theory or theories themselves” (J.B. v. City of New York, 231 AD3d 696, 698 [internal quotation marks omitted] ).  Knowledge of the accident itself 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 (see Matter of Egalite v. New York City Tr. Auth., 238 AD3d 744, 746;  I.N. v. City of Yonkers, 203 AD3d 721, 723).

Here, the petitioner's email informing the respondent that she sustained minor injuries after falling into a hole did not provide the respondent with actual knowledge of the essential facts underlying the legal theories in the notice of claim (see Matter of DeGarmo v. City of New York, 237 AD3d 1092, 1093;  Matter of Anderson v. City of New York, 237 AD3d 927, 928;  Matter of Moore v. Nassau Univ. Med. Ctr., 237 AD3d 827, 828–829).  The petitioner's email and photographs demonstrating the existence of a small hole covered in grass and her representation that the respondent's director of facilities “mentioned a cone” at some point after her fall did not provide the respondent with actual knowledge of the essential facts underlying the legal theories in the notice of claim, including that the respondent had actual or constructive notice of the hole before the petitioner's fall and that the respondent was negligent in, among other things, failing to supervise the premises, creating the alleged hazardous condition, and permitting the area where the accident occurred to become and remain hazardous (see Matter of DeGarmo v. City of New York, 237 AD3d at 1093;  Matter of Moore v. Nassau Univ. Med. Ctr., 237 AD3d at 828–829).  Nor did the petitioner's email provide the respondent with actual knowledge that the petitioner sustained severe permanent personal injuries as a result of her fall (see Matter of Anderson v. City of New York, 237 AD3d at 928).  There was no evidence in the record to support the petitioner's hearsay allegation that the respondent's director of facilities admitted that the respondent had prior notice “of the uncovered drainage hole several days prior” to the petitioner's fall (see Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d 790, 791–792;  Matter of Lewis v East Ramapo Cent. Sch. Dist., 110 AD3d 720, 722).  Thus, although the petitioner promptly informed the respondent of her accident, thereby enabling the respondent to repair the hazardous condition, it was not readily inferable that a potentially actionable wrong had been committed by the respondent (see Matter of Tsontakis v. City of New York, 239 AD3d 662, 663–664;  Matter of Guerre v. New York City Tr. Auth., 226 AD3d 897, 898).

Furthermore, the petitioner failed to demonstrate a reasonable excuse for her failure to serve a timely notice of claim.  The petitioner's ignorance of the notice of claim requirement does not constitute a reasonable excuse (see Matter of Beaton v. City of New York, 186 AD3d 1677, 1678).

Finally, the petitioner failed to meet her initial burden of coming forward with some evidence or plausible argument supporting a finding that the respondent was not substantially prejudiced by the delay (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 466).  To the extent that the petitioner relied on her contention that the respondent would not be substantially prejudiced by the late notice of claim because it acquired timely actual knowledge, her failure to establish actual knowledge is fatal (see Matter of Jaime v. City of New York, 41 NY3d at 543–544).  Insofar as the petitioner contends that the respondent's investigation of the hole demonstrated that the respondent was not substantially prejudiced by the delay, there was no indication that an investigation of the petitioner's specific claims of negligence was undertaken or contemplated (see Matter of Crawford v. City of New York, 237 AD3d 1089, 1091;  Matter of Nadler v. City of New York, 166 AD3d 618, 621).

Our dissenting colleague's contentions that the petitioner's submissions would permit the respondent to reconstruct the conditions on the date of her fall and that her injuries could be ascertained from ambulance records were not raised by the parties and are not supported by the evidence.  While the petitioner's email to the respondent indicated that her daughter, her grandson, a security guard, and “several women” attended to her after she had fallen, she does not identify any witnesses to the fall itself and the record does not indicate what records, if any, were created by the EMTs, who were already on campus for the graduation ceremony.  Where, as here, there is no reasonable excuse for the delay and the municipal party did not acquire actual knowledge of the essential facts of the claim within the 90–day period or a reasonable time thereafter, “the transitory nature of the injury-producing condition weighs against the granting of an application to file a late notice of claim” (Matter of Moroz v. City of New York, 165 AD3d 799, 800;  see Matter of Fernandez v. City of New York, 131 AD3d 532, 533).

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

CHAMBERS, CHRISTOPHER and MCCORMACK, JJ., concur.

BARROS, J.P., dissents, and votes to reverse the order dated October 31, 2023, on the law and in the exercise of discretion, to grant the petitioner's motion for leave to serve a late notice of claim, and to grant the petition for leave to serve a late notice of claim, with the following memorandum:

“The purpose of the notice of claim is to alert the municipality to the existence of the claim so that it can promptly investigate and preserve any relevant evidence before the passage of time renders such evidence unavailable or lessens its probative value” (Matter of Jaime v. City of New York, 41 NY3d 531, 539).  “Since the statutory notice requirement ‘is not intended to operate as a device to frustrate the rights of individuals with legitimate claims,’ and because of its remedial nature, it ‘should be liberally construed’ ” (Matter of Ramos v. New York City Hous. Auth., 162 AD3d 884, 885, quoting Matter of Porcaro v. City of New York, 20 AD3d 357, 358).  All relevant circumstances that the court must consider in determining whether to grant leave include “whether:  (1) the public corporation ‘acquired actual knowledge of the essential facts constituting the claim’ within 90 days of when the claim arose or within a reasonable time thereafter;  (2) the claimant was an infant when the claim arose;  (3) the claimant demonstrated a reasonable excuse for failing to serve a timely notice of claim;  and (4) ‘the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits' ” (Matter of Arvizu v. New York City Tr. Auth., 239 AD3d 643, 643–644, quoting General Municipal Law § 50–e[5] ).  “While no single factor is necessarily determinative, ‘whether the [public corporation] timely acquired actual knowledge is of great importance’ ” (Matter of Cooke v Mamaroneck Union Free Sch. Dist., 238 AD3d 1034, 1035, quoting C.A. v. Academy Charter Sch., 216 AD3d 1075, 1077).  “In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim;  the public corporation need not have specific notice of the theory or theories themselves” (Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 148).

Moreover, the petitioner is not required to prove the merits of a cause of action.  “Ordinarily, the courts will not delve into the merits of an action on an application for leave to serve and file a late notice of claim” unless “the underlying action is patently meritless” (Matter of Brown v. New York City Hous. Auth., 39 AD3d 744, 745).  Further, a notice of claim need only describe the injured party's “injuries claimed to have been sustained so far as then practicable” (General Municipal Law § 50–e[2] ).  Therefore, the actual knowledge of the essential facts constituting the claim need not include a full exploration of the extent of the petitioner's injuries.

On June 17, 2022, while attending her grandson's graduation ceremony, the petitioner's ankle/foot fell into a hole on the campus of North Rockland High School.  The petitioner immediately alerted an identified school security guard and showed the security guard the location and the condition of the site where the petitioner fell, which was described in the proposed notice of claim and in her petition as on a grassy area “near the fence area on the annex side.”  The security guard in turn informed the head of security.  The petitioner alleged that approximately five days later, on or about June 22, 2022, she spoke to the respondent's director of facilities, who stated that the defect was caused by an uncovered drainage hole, that “the school district was aware of the uncovered drainage hole several days prior to June 17, 2022,” that “a cone was supposed to be placed over the hole prior to June 17, 2022,” and that “immediate action has been taken to prevent this from happening in the future.”

On June 24, 2022, one week after the accident, the petitioner sent an email to the respondent's assistant superintendent of business describing the accident, which included photographs of the hole.  In her email, the petitioner noted that her daughter lifted her leg/foot out of the hole, her grandson found three pieces of scrap metal in the hole that cut the petitioner's ankle, and after the security guard was notified, ambulance personnel checked her vital signs and medical condition.  The petitioner noted that the hole was obscured by grass so it could not be seen and that a cone was put in the hole before she left the area where the accident occurred.

In July 2023, the petitioner commenced this proceeding pursuant to General Municipal Law § 50–e and moved for leave to serve a late notice of claim.  The petitioner alleged that she was not aware of the notice of claim requirement until she retained counsel on July 14, 2023, more than one year after the accident.  She further alleged that the respondent was not prejudiced by the late filing of her proposed notice of claim because the respondent had notice of the accident within the requisite 90–day period and had investigated the accident.  The email and photographs that the petitioner previously forwarded to the respondent were annexed to the proposed notice of claim.

In opposition, the respondent acknowledged that it had received the petitioner's email and photographs.  The respondent further argued that it was prejudiced because there were no agents of the respondent who were eyewitnesses to the accident, the petitioner provided no “information relating to who else may have witnessed the occurrence on the part of the School District for the purposes of verifying the petitioner's version of facts,” and the defect was transitory.

In an order dated October 31, 2023, the Supreme Court denied the petitioner's motion for leave to serve a late notice of claim, denied the petition, and dismissed the proceeding on the ground that the petitioner did not establish a reasonable excuse for her delay.  The petitioner appeals.

In this case, the petitioner did not have a reasonable excuse for her failure to serve a timely notice of claim (see Matter of Beaton v. City of New York 186 AD3d 1677, 1678).  However, “ ‘[w]here there is actual notice and absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim’ ” (Matter of Benedetto v New York City Sch. Constr.  Auth., 230 AD3d 1138, 1140, quoting Matter of Joy v. County of Suffolk, 89 AD3d 1025, 1027).

The petitioner provided timely notice to the respondent of the essential facts constituting the claim that underlie the legal theory or theories on which liability is predicated (see Matter of Quinones v. City of New York, 160 AD3d 874, 876), to wit, a premises defect and the failure to warn of the defect.  The information provided by the petitioner to the respondent specified the location and circumstances of the accident, thereby permitting the respondent to readily infer that a potentially actionable wrong had been committed (see Matter of Steward v. City of New York, 226 AD3d 912, 914).  The respondent was notified that the petitioner's fall allegedly was caused by an uncovered drainage hole that was obscured by grass and only after the accident did the respondent place a cone at the accident site to warn of the defect.  “[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 Taylor v. County of Suffolk, 90 AD3d 769, 770), which was the case here (see Matter of Boskin v. New York City Tr. Auth., 44 AD3d 851, 852).

The cases cited by my colleagues in the majority on this point are distinguishable, since they concern the issue of notice to a separate public agency that the petitioner attempted to attribute to the respondent (see Matter of Egalite v. New York City Tr. Auth., 238 AD3d 744, 746;  Matter of Anderson v. City of New York, 237 AD3d 927, 928), or notice of an injury without any information as to the location of the accident or how it occurred (see Matter of Moore v. Nassau Univ. Med. Center, 237 AD3d 827;  Matter of Guerre v. New York City Tr. Auth., 226 AD3d 897;  I.N. v. City of Yonkers, 203 AD3d 721), or notice of an injury without a description of the defect (see Matter of Tsontakis v. City of New York, 239 AD3d 662), or notice of a wrong perpetrated by another party, which is attributable to the respondent under a theory of failure to supervise (see Matter of DeGarmo v. City of New York, 237 AD3d 1092, 1093).

This is a proceeding for leave to serve a late notice of claim, not a motion for summary judgment in favor of the petitioner.  Therefore, the petitioner was not required to prove that the respondent had actual or constructive knowledge of the defect.  Nevertheless, the petitioner demonstrated that the respondent acquired timely, actual knowledge of the essential facts constituting the petitioner's claim by providing a sworn statement that she spoke to the respondent's director of facilities, who stated that “the school district was aware of the uncovered drainage hold several days prior to June 17,2022” and that “a cone was supposed to be placed over the hole prior to June 17, 2022.”  My colleagues in the majority discount this evidence as hearsay.  However, the alleged statement of the respondent's director of facilities was admissible as an admission (see Carpenter v. D'Agostino Supermarkets, 270 A.D.2d 51).

The petitioner described her injuries in her email to the respondent's assistant superintendent of business and the petitioner was examined by ambulance personnel at the accident site.  Therefore, the petitioner's injuries could be ascertained from contemporaneous records.  In any event, the petitioner only was required to describe the “injuries claimed to have been sustained so far as then practicable” (General Municipal Law § 50–e[2] ).

Further, on the question of prejudice, since the respondent acquired timely, actual knowledge of the essential facts constituting the petitioner's claim, the petitioner met her initial burden of showing a lack of prejudice (see Matter of Arvizu v. New York City Tr. Auth., 239 AD3d at 644).  While it is true that apparently there was no agent of the respondent who actually witnessed the accident, the security guard witnessed its immediate aftermath and the head of security was also alerted.  Further, the petitioner was examined at the accident site by ambulance personnel and there were other witnesses, including the petitioner's daughter and grandson.  Within one week of the accident, other school officials were notified orally and in writing.

The photographs of the accident site and the list of witnesses would permit the respondent to reconstruct the conditions on the date of the accident (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 466).  “Even if the [respondent] did not conduct a timely investigation, the fact that [it] could have done so met [the] burden” (Matter of Benedetto v New York City Sch. Constr.  Auth., 230 AD3d 1138, 1140) of producing “some evidence or plausible argument that supports a finding of no substantial prejudice” (Matter of Newcomb v Middle Country Cent. School Dist., 28 NY3d at 466).

“Once this initial showing has been made, the public corporation must respond with a particularized evidentiary showing that the corporation will be substantially prejudiced if the late notice is allowed” (id. at 467).  On that point, as previously noted, although no agent of the respondent was an eyewitness to the accident, the security guard was a witness to its immediate aftermath and there were other identified witnesses.  The alleged statements by the respondent's director of facilities that the defect was caused by an uncovered drainage hole and that “immediate action has been taken to prevent this from happening in the future” indicated that the condition was rectified by the respondent.  Therefore, the respondent was fully aware of the nature of the defect (see Matter of Battle v. City of New York, 261 A.D.2d 614;  see generally Matter of Licari v New York City Hous. Auth., 181 A.D.2d 558).

There is no indication in the record that the drainage hole was transitory.  Its alleged transitory nature is attributable to the respondent's efforts to repair the defect after the respondent was alerted to the accident.

Under these circumstances, the Supreme Court improvidently exercised its discretion in denying the petitioner's motion for leave to serve a late notice of claim, denying the petition, and dismissing the proceeding.

ENTER:

Darrell M. Joseph

Clerk of the Court