IN RE: Joseph Defonce (2026)

Argued—March 17, 2026

DECISION & ORDER

M/

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, Westchester County (Thomas Quiñones, J.), dated September 30, 2024.  The order denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

On May 3, 2023, the petitioner allegedly was injured when a motorcycle he was operating during the course of his employment with the Harrison Police Department collided with a motorcycle operated by a police officer employed by the Village of Port Chester Police Department.  The accident occurred while the petitioner and the Village of Port Chester officer were traveling east, side-by-side, on White Street in the Village of Tarrytown when the two motorcycles sideswiped each other.  On or about February 6, 2024, the petitioner served the Village of Port Chester with a late notice of claim, without leave of court.  On July 9, 2024, the petitioner commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem the late notice of claim timely served nunc pro tunc.  In an order dated September 30, 2024, the Supreme Court denied the petition and, in effect, dismissed the proceeding.  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” (Matter of Grabko v Rye Neck Union Free Sch. Dist., 236 AD3d 912, 912;  see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 460).  Pursuant to General Municipal Law § 50–e(5), upon application, the Supreme Court, in its discretion, may extend the time to serve a notice of claim upon a public corporation, or to deem a late notice of claim timely served nunc pro tunc (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 465;  Matter of Rojas v New York City Health & Hosps.  Corp., 127 AD3d 870, 872).  “In determining whether to grant an application 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 Rojas v New York City Health & Hosps.  Corp., 127 AD3d at 872;  see General Municipal Law § 50–e[5];  Matter of Saini v. City of New York, 244 AD3d 983, 984).  “Although the presence or absence of any one factor is not determinative, whether the municipality 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 evidence submitted in support of the petition failed to establish that the Village of Port Chester acquired knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter.  Contrary to the petitioner's assertions, neither the police report prepared by the responding officer from the Tarrytown Police Department nor the Village of Port Chester officer's line-of-duty injury report or workers' compensation forms provided the Village of Port Chester with actual knowledge of the essential facts constituting the claim.  The police report, prepared by the Tarrytown Police Department, cannot be imputed to the Village of Port Chester (see Matter of Almeida v. City of New York, 227 AD3d 890, 892;  Matter of Nunez v. Village of Rockville Ctr., 176 AD3d 1211, 1215).  Moreover, “[a] report which describes the circumstances of the accident without making a connection between the petitioner's injuries and negligent conduct on the part of the public corporation will not be sufficient to constitute actual notice of the essential facts constituting the claim” (Matter of Almeida v. City of New York, 227 AD3d at 892 [internal quotation marks omitted];  see Matter of D'Agostino v. City of New York, 146 AD3d 880, 881).  The line-of-duty injury report and the workers' compensation forms relating to the Village of Port Chester officer did not mention the petitioner or any injuries he allegedly sustained in the accident, nor do they support a ready inference that the Village of Port Chester committed a potentially actionable wrong (see Matter of Almeida v. City of New York, 227 AD3d at 892;  Matter of Johnson v. County of Suffolk, 167 AD3d 742, 745).

Moreover, the petitioner failed to demonstrate a reasonable excuse for failing to timely serve the notice of claim.  The excuse offered by the petitioner, that he did not readily appreciate the severity of his injuries, was unacceptable without supporting medical evidence explaining why the extent of his injuries and disability took so long to become apparent (see Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d 790, 791;  Matter of Sparrow v Hewlett–Woodmere Union Free Sch. Dist. [# 14], 110 AD3d 905, 907).

Finally, the petitioner failed to meet his burden of presenting some evidence or plausible argument that supports a finding that the delay would not substantially prejudice the Village of Port Chester in maintaining its defense on the merits (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 466;  Matter of Rayson v New York City Health & Hosps.  Corp., 165 AD3d 948, 949).

Accordingly, the Supreme Court properly denied the petition and, in effect, dismissed the proceeding.

DILLON, J.P., BRATHWAITE NELSON, LOVE and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court