IN RE: Rosa SERPICO-MARESCA (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, Nassau County (Lisa A. Cairo, J.), entered January 24, 2024, and (2) an order of the same court dated July 8, 2024.  The order entered January 24, 2024, denied the petition and, in effect, dismissed the proceeding.  The order dated July 8, 2024, insofar as appealed from, upon reargument, adhered to the prior determination in the order entered January 24, 2024.

ORDERED that the appeal from the order entered January 24, 2024, is dismissed, as that order was superseded by the order dated July 8, 2024, made upon reargument;  and it is further,

ORDERED that the order dated July 8, 2024, is affirmed insofar as appealed from;  and it is further,

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

On October 10, 2023, the petitioner commenced this proceeding against the respondent, Town of Hempstead, pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim on the Town in connection with personal injuries the petitioner alleged that her child sustained on July 8, 2022, while playing street hockey as part of a summer recreation program operated by the Town. The petitioner submitted, inter alia, an incident report that was completed on the same day as the incident by a program staff member employed by the Town. The petitioner alleged, among other things, that on September 23, 2022, her attorney timely served a notice of claim upon the wrong municipal entities.  The Town opposed.  By order entered January 24, 2024 (hereinafter the January 2024 order), the Supreme Court denied the petition and, in effect, dismissed the proceeding.  Thereafter, the petitioner moved for leave to reargue the petition.  The Town opposed.  In an order dated July 8, 2024 (hereinafter the July 2024 order), the court, inter alia, upon reargument, adhered to its prior determination in the January 2024 order.  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 (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 460).  However, “the Supreme Court, in its discretion, may extend the time to serve a notice of claim upon a public corporation” (Matter of Roman v. New York City Hous. Auth., 212 AD3d 816, 817;  see General Municipal Law § 50–e[5] ).  In determining whether to grant such leave, the court “must consider all relevant facts and circumstances, including, but not limited to, whether (1) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the municipal entity acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the municipal entity in its defense” (Matter of Grabko v Rye Neck Union Free Sch. Dist., 236 AD3d 912, 912–913).  “Neither the presence nor absence of any one factor is determinative, although it is generally recognized that the question of whether the municipality acquired timely, actual knowledge is of great importance” (Matter of Charbrut v. City of New York, 237 AD3d 695, 696 [internal quotation marks omitted];  see Matter of Jaime v. City of New York, 41 NY3d 531, 540).

“Actual knowledge of the essential facts underlying the claim means knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the [proposed] notice of claim;  the public corporation need not have specific notice of the theory or theories themselves” (Matter of C.N. v. City of New York, 208 AD3d 784, 785 [internal quotation marks omitted] ).

Here, the petitioner failed to demonstrate that the Town acquired actual knowledge of the essential facts constituting the claim within the 90–day statutory period or a reasonable time thereafter.  Contrary to the petitioner's contention, the incident report failed to provide actual knowledge to the Town as it merely indicated that the child had been injured during a hockey game with another participant in the summer recreation program (see Mallor v. City of New York, 230 AD3d 1129, 1130;  Matter of C.N. v. City of New York, 208 AD3d at 786).  The incident report did not provide any facts to indicate any connection between the alleged injuries and alleged negligent conduct on the part of the Town (see Matter of Charbrut v. City of New York, 237 AD3d at 697;  Matter of Clark v. City of New York, 139 AD3d 849, 850).

The petitioner also failed to proffer a reasonable excuse for failing to timely serve a notice of claim on the Town as the petitioner submitted no evidence to demonstrate that she promptly sought leave to serve the correct municipal entity once she discovered the error (see Matter of Shavreshyan v. City of New York, 207 AD3d 470, 471;  Matter of Quinones v. City of New York, 160 AD3d 874, 876).

“To establish lack of substantial prejudice, the petitioner must meet a threshold burden of presenting some evidence or plausible argument that supports a finding of no substantial prejudice” (Matter of Shumway v. Town of Hempstead, 187 AD3d 758, 759;  see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 460–461).  “Once this initial showing has been made, the respondent must respond ‘with a particularized evidentiary showing’ that it will be substantially prejudiced if the late notice is allowed” (Matter of Shumway v. Town of Hempstead, 187 AD3d at 759, quoting Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 467).  Here, the petitioner's contention that the Town would not be substantially prejudiced because it had the incident report was sufficient to require the Town to demonstrate that it would be substantially prejudiced (see id. at 759-760).  The Town's contention that the delay and passage of time was prejudicial is insufficient, standing alone, to constitute prejudice (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 467).

Nonetheless, the Supreme Court providently weighed the relevant factors and exercised its discretion in denying the petition (see Matter of Shumway v. Town of Hempstead, 187 AD3d at 759–760;  Matter of Charles v. County of Orange, N.Y., 164 AD3d 1232, 1234).

Accordingly, upon reargument, the Supreme Court properly adhered to its prior determination denying the petition and, in effect, dismissing the proceeding.

DUFFY, J.P., WOOTEN, LOVE and QUIRK, JJ., concur.