IN RE: Dominic Cataldo (2026)

Argued—January 12, 2026

DECISION & ORDER

W/

In a proceeding pursuant to General Municipal Law § 50–e for leave to serve a late notice of claim, the Town of East Hampton appeals from an order of the Supreme Court, Suffolk County (James F. Quinn, J.), dated January 10, 2025.  The order, insofar as appealed from, granted that branch of the petition which was to serve a late notice of claim upon the Town of East Hampton to the extent of deeming a notice of claim served upon the Town of East Hampton on June 21, 2024, to have been timely served nunc pro tunc.

ORDERED that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, and that branch of the petition which was to serve a late notice of claim upon the Town of East Hampton is denied.

On August 6, 2023, the petitioner was floating 100 yards beyond a designated swimming area at South Edison Beach, with the back of his head to the ocean, when a wave crashed over him and forced him to the ocean floor, causing a severe spinal cord injury.  The designated swimming area was marked with blue flags and signs and was monitored by lifeguards employed by the Town of East Hampton.  Friends of the petitioner brought him to the shore and flagged down the lifeguards, who provided assistance in transporting the petitioner to a hospital.  On August 13, 2023, several members of the petitioner's family returned to the beach and questioned lifeguards working there as to how the accident could have happened on a public beach.  After meeting with attorneys on April 15, 2024, the petitioner served a notice of claim upon the Town on June 21, 2024, alleging that the Town's lifeguards were negligent in failing to warn the petitioner that he was beyond the designating swimming area and in failing to warn him that it was dangerous to float with his back to the ocean.  On July 1, 2024, the petitioner commenced this proceeding pursuant to General Municipal Law § 50–e for leave to serve a late notice of claim upon the Town and the County of Suffolk.  In an order dated January 10, 2025, the Supreme Court denied that branch of the petition which was to serve a late notice of claim upon the County, but granted that branch of the petition which was to serve a late notice of claim upon the Town to the extent of deeming the notice of claim served on June 21, 2024, to have been timely served nunc pro tunc.  The Town appeals.

General Municipal Law § 50–e(5) provides that “[u]pon application, the court, in its discretion, may extend the time to serve a notice of claim” and that “[i]n determining whether to grant the extension, the court shall consider, in particular, whether the public corporation ․ acquired actual knowledge of the essential facts constituting the claim within [90 days after the cause of action arises] or a reasonable time thereafter.”  The statute further provides that the court “shall also consider all other relevant facts and circumstances, including ․ whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits” (id.).  “Courts also commonly consider whether the petitioner had a reasonable excuse for failing to serve a timely notice of claim.  While the statute does not explicitly provide for consideration of that factor, the statute is nonexhuastive and this factor has firmly taken root in the case law” (Matter of Jaime v. City of New York, 41 NY3d 531, 541).  “ ‘The presence or absence of any one factor is not necessarily determinative, but whether the public corporation had actual knowledge of the essential facts constituting the claim is the most important, based on its placement in the statute and its relation to other relevant factors' ” (Matter of Egalite v. New York City Tr. Auth., 238 AD3d 744, 745–746, quoting Matter of Quinones v. City of New York, 160 AD3d 874, 875;  see Matter of Jaime v. City of New York, 41 NY3d at 540).

Here, the petitioner failed to establish that the Town had actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter.  “ ‘[K]nowledge 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’ ” (Matter of Cooke v Mamaroneck Union Free Sch. Dist., 238 AD3d 1034, 1035, quoting Matter of Quinones v. City of New York, 160 AD3d at 876).  “Generally, the phrase ‘facts constituting the claim’ is understood to mean the facts which demonstrate a connection between the happening of the accident and any negligence on the part of the public corporation” (Matter of Romeo v. Long Is. Power Auth., 133 AD3d 667, 668).  “For reports to provide actual knowledge of the essential facts, ‘one must be able to readily infer from the report that a potentially actionable wrong had been committed’ ” (Matter of Ortiz v. Westchester County, 208 AD3d 487, 488, quoting Matter of Fethallah v. New York City Police Dept., 150 AD3d 998, 1000).  “The direct involvement of the respondents' employee in the accident itself, without more, is not sufficient to establish that the respondents acquired actual notice of the essential facts constituting the claim” (Matter of Vincent v. City of New York, 208 AD3d 589, 590).  Further, “courts should not assume that every municipality's knowledge of essential facts is necessarily imputed to the municipality.  Allowing imputation in every case would undermine the purpose of the notice of claim requirement because not every employee's knowledge will necessarily afford the municipality an opportunity to commence a prompt investigation.  Generally, knowledge of essential facts as to time and place by an actor in position to investigate will suffice” (Matter of Jaime v. City of New York, 41 NY3d at 540).  In this case, while the Town had notice of the accident and that the petitioner suffered a serious injury, it did not have notice that the injury was connected to any negligence on the part of the Town. Even if the conversation between the petitioner's family members and lifeguards provided the lifeguards with knowledge of a potential claim, this knowledge could not be imputed to the Town because the lifeguards were not in a position to investigate (see id.).

Further, in light of the fact that members of his family appeared to be considering the making of a claim when they returned to the accident scene one week after the accident and interviewed lifeguards, the petitioner failed to demonstrate a reasonable excuse for failing to serve a timely notice of claim, or for failing to serve a notice of claim until 67 days after meeting with attorneys on April 15, 2024 (see Matter of Mandelbaum v. City of New York, 230 AD3d 498, 499).

In addition, although the petitioner presented a plausible argument that the delay in servicing a notice of claim would not substantially prejudice the Town in maintaining its defense on the merits, the Town made a “particularized evidentiary showing that [it] will be substantially prejudiced if the late notice is allowed” (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 467).  The Town submitted, among other things, an affirmation of its lifeguard captain, who stated that he spoke to the petitioner and his companions immediately after the accident and recalled the petitioner telling him that the petitioner had consumed alcohol, but he no longer recalled what the petitioner said about his alcohol use or other details about the accident.

Finally, “[o]rdinarily, 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.  However, it is an improvident exercise of discretion to grant an application where the underlying claim is patently meritless” (Walsh v. Knudsen, 198 AD3d 843, 845 [citations and internal quotation marks omitted];  see Matter of Catherine G. v. County of Essex, 3 NY3d 175, 178).  Here, the petitioner's claim that the lifeguards had a duty to warn him that he was beyond the designating swimming area and to warn him that it was dangerous to float with his back to the ocean borders on being patently meritless (see Saland v. Village of Southampton, 242 A.D.2d 568, 569;  Smyth v. County of Suffolk, 172 A.D.2d 741, 742;  Cimino v. Town of Hempstead, 110 A.D.2d 805, 805–806;  Pope v. State of New York, 198 Misc. 31, 37, affd 277 A.D.2d 1157).

For the foregoing reasons, the Supreme Court should have denied that branch of the petition which was pursuant to General Municipal Law § 50–e for leave to serve a late notice of claim upon the Town.

LASALLE, P.J., VOUTSINAS, LOVE and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court