IN RE: Zachary P. NASH (2026)

DECISION & ORDER

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, Kings County (Rupert V. Barry, J.), dated May 23, 2023.  The order denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, that branch of the petition which was to deem a late notice of claim timely served nunc pro tunc is granted, and that branch of the petition which was for leave to serve a late notice of claim is denied as academic.

On November 14, 2021, the petitioner allegedly was injured when he fell onto the tracks at the Greenpoint Avenue subway station in Brooklyn, and was then struck by a train.  On November 9, 2022, the petitioner served an untimely notice of claim on the Metropolitan Transit Authority and the New York City Transit Authority (hereinafter together the respondents).  On November 29, 2022, the petitioner commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim upon the respondents or to deem the notice of claim timely served nunc pro tunc.  In an order dated May 23, 2023, the Supreme Court denied the petition and, in effect, dismissed the proceeding.  The petitioner appeals.

“ ‘Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against the New York City Transit Authority and the Metropolitan Transportation Authority’ ” (Matter of Griffith v. New York City Tr. Auth., 235 AD3d 870, 870–871, quoting Durand v. MV Transp., Inc., 186 AD3d 564, 564–565;  see Public Authorities Law §§ 1212[2];  1276[2];  General Municipal Law § 50–e[1][a] ).

“ ‘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' ” (Matter of Griffith v. New York City Tr. Auth., 235 AD3d at 871 [internal quotation marks omitted], quoting Matter of Robinson v. City of New York, 208 AD3d 587, 587–588;  see General Municipal Law § 50–e[5] ).  “Although the presence or absence of any one factor 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 897, 898).

Here, the petitioner demonstrated that the respondents acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident based on the respondents' prompt and thorough investigation of the accident, which included interviews of the train operator and analysis regarding the speed of the train and when the train's emergency brake was engaged (see Matter of Polito v. North Babylon Sch. Dist., 246 AD3d 1098, 1100;  Matter of Manbodh v. New York City Tr. Auth., 204 AD3d 914, 915).  Moreover, since the respondents acquired timely knowledge of the essential facts constituting the claim, the petitioner met his initial burden of showing that the respondents would not be prejudiced by the late notice of claim (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 466;  Lobos v. City of New York, 219 AD3d 720, 722).  In response to the petitioner's initial showing, the respondents failed to come forward with particularized evidence showing that the late notice substantially prejudiced their ability to defend the claim on the merits (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 466;  Matter of Manbodh v. New York City Tr. Auth., 204 AD3d at 915).

Further, contrary to the respondents' contention, the petitioner demonstrated a reasonable excuse for his delay in serving the notice of claim.  “A petitioner may be able to establish a reasonable excuse for not timely serving a notice of claim based on an injury or medical condition, but only ‘through admissible medical evidence that he [or she] was incapacitated to such an extent that he [or she] could not have complied with the statutory requirement’ ” (Matter of Balbuenas v New York City Health & Hosps.  Corp., 209 AD3d 642, 646, quoting Matter of Smith v Westchester County Health Care Corp., 165 AD3d 1150, 1151).  However, “even absent incapacitation, a reasonable excuse may be established by an allegation that a petitioner was more concerned and preoccupied with his or her alleged injuries ․ than with retaining counsel to pursue a legal claim, but only when such an allegation is supported by medical evidence” (id.;  see Matter of Hampson v. Connetquot Cent. Sch Dist., 114 AD3d 790, 791).  Here, the petitioner sufficiently established a reasonable excuse for his delay in serving a notice of claim based on his preoccupation with his injuries, treatment, and recovery, including the required amputation of his lower right leg, and his extended stay at a rehabilitation center as he relearned how to walk (see Moody–DuBois v. Westchester Med. Ctr., 238 AD3d 733, 736).

Accordingly, the Supreme Court should have granted that branch of the petition which was to deem the petitioner's late notice of claim timely served nunc pro tunc.

In light of our determination, that branch of the petition which was for leave to serve a late notice of claim is academic.

BRATHWAITE NELSON, J.P., WOOTEN, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.