IN RE: Martha ARCILA (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, Nassau County (Denise L. Sher, J.), dated November 7, 2024. 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 one bill of costs payable to the petitioner, 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 30, 2023, the petitioner allegedly tripped and fell on a cracked and uneven sidewalk located in Roslyn Heights. On February 29, 2024, the petitioner served a notice of claim on the respondents, Town of North Hempstead and Nassau County, one day after the expiration of the 90–day statutory period. On or about April 23, 2024, the petitioner commenced this proceeding pursuant to General Municipal Law § 50–e(5), inter alia, for leave to serve a late notice of claim. In an order dated November 7, 2024, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.

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 id. § 50–e[1][a]; Lobos v. City of New York, 219 AD3d 720, 721). General Municipal Law § 50–e(5) provides that the court, in its discretion, may extend the time to serve a notice of claim (see Matter of Arvizu v. New York City Tr. Auth., 239 AD3d 643, 643; Matter of Crowder v New York City Sch. Constr. Auth., 230 AD3d 490, 491). “In determining whether to grant leave to serve a late notice of claim under General Municipal Law § 50–e(5), the court, in its discretion, 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 municipality 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 municipality in its defense” (Matter of Saini v. City of New York, 244 AD3d 983, 983–984 [internal quotation marks omitted]; see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 460–461). While the presence or the absence of any one of the factors is not necessarily determinative, whether the public corporation had actual knowledge of the essential facts constituting the claim is of great importance (see Matter of Arvizu v. New York City Tr. Auth., 239 AD3d at 644; Matter of Tejada v. City of New York, 161 AD3d 876, 877).

Under the circumstances of this case, the respondents acquired actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the 90–day period (see Matter of Silberman v. City of Long Beach, 87 AD3d 1071, 1071). Contrary to the County's contention, the notice of claim was sufficient to confer actual knowledge of the essential facts constituting the claim, as it specified the place, time, and nature of the accident (see Matter of Herry v. New York City Hous. Auth., 237 AD3d 705, 707). Moreover, since the respondents acquired actual knowledge of the essential facts constituting the petitioner's claim within a reasonable time after the expiration of the 90–day period, the petitioner satisfied her initial burden of presenting a “plausible argument” that the respondents would not be substantially prejudiced in investigating and defending the claim (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 466; see Matter of Joseph v. City of New York, 208 AD3d 1324, 1326–1327). In opposition, the respondents “failed to come forward with particularized evidence showing that the late notice had substantially prejudiced [their] ability to defend the claim on the merits” (Matter of Arvizu v. New York City Tr. Auth., 239 AD3d at 645, quoting Matter of Tejada v. City of New York, 161 AD3d at 878) Further, the petitioner sufficiently demonstrated a reasonable excuse for the one-day delay in serving the notice of claim based on her attorney's specific averment that his office mistakenly entered the date by which to file a notice of claim as February 29, 2024, instead of February 28, 2024 (see Matter of Brown v. New York City Hous. Auth., 182 AD3d 594, 595; Robb v. New York City Hous. Auth., 71 A.D.2d 1000, 1001).

The Town's remaining contention is without merit.

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

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