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Supreme Court, Appellate Division, First Department, New York.

IN RE: Dauly MERCEDES, Petitioner–Appellant, v. CITY OF NEW YORK, Respondent–Respondent.


Decided: February 28, 2019

Renwick, J.P., Manzanet–Daniels, Oing, Moulton, JJ. Mitchell Dranow, Sea Cliff, for appellant. Zachary W. Carter, Corporation Counsel, New York (Cassandra Rohme of counsel), for respondent.

In support of his application, filed about three months after the 90–day statutory period elapsed, petitioner submitted an affidavit averring that he was injured by the sudden malfunction of weight lifting equipment in a recreation center owned by the City, and that an employee of the center assisted him and prepared an accident report, which petitioner signed.  Through a clerical oversight, petitioner's attorneys did not immediately mark petitioner's case as one for which a notice of claim was a prerequisite.

In considering whether to grant an application for leave to file a late notice of claim under General Municipal Law § 50–e (5), courts are required to consider whether the public corporation “acquired actual knowledge of the essential facts constituting the claim within [90 days] or within a reasonable time thereafter,” and “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,” the length of the delay, and whether there was a reasonable excuse for the delay (id.;  see Matter of Townson v. New York City Health & Hosps. Corp., 158 A.D.3d 401, 70 N.Y.S.3d 200 [1st Dept. 2018] ).  The purposes of a notice of claim are “on the one hand protecting municipal defendants from stale or frivolous claims, and on the other hand, ensuring that a meritorious case is not dismissed for a ministerial error” (Goodwin v. New York City Hous. Auth., 42 A.D.3d 63, 66, 834 N.Y.S.2d 181 [1st Dept. 2007] [internal quotation marks omitted] ).  In light of the policies underlying General Municipal Law § 50–e(5), the statute is to be liberally construed to achieve its remedial purposes (Matter of Thomas v. City of New York, 118 A.D.3d 537, 538, 988 N.Y.S.2d 152 [1st Dept. 2014] ).

Assuming that the law firm's clerical error was not a reasonable excuse, “ ‘[t]he absence of a reasonable excuse is not, standing alone, fatal to the application,’ ” where the municipal respondent had actual notice of the essential facts constituting the claim and was not prejudiced by the delay (Matter of Dominguez v. City Univ. of N.Y., 166 A.D.3d 540, 541, 88 N.Y.S.3d 19 [1st Dept. 2018];  Renelique v. New York City Hous. Auth., 72 A.D.3d 595, 596, 899 N.Y.S.2d 232 [1st Dept. 2010] ).  Here, petitioner's affidavit stating that he signed an incident report prepared by respondent's employee shortly after the accident, and that the weightlifting equipment was repaired a few months later, demonstrate prima facie that respondent received actual notice of the pertinent facts underlying his claim, if not the negligence claim itself, which supports a “plausible argument” that the City will not be substantially prejudiced in investigating and defending the claim (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016];  Renelique, 72 A.D.3d at 596, 899 N.Y.S.2d 232;  Matter of Toro v. New York City Hous. Auth., 182 A.D.2d 358, 358, 582 N.Y.S.2d 118 [1st Dept. 1992] ).

The burden thus shifted to the City, which possesses the relevant information concerning its own knowledge, to make “a particularized evidentiary showing” that it would be substantially prejudiced if the late notice were allowed (Newcomb, 28 N.Y.3d at 467, 45 N.Y.S.3d 895, 68 N.E.3d 714).  Here, the City did not deny the existence of the incident report or submit any evidence, but simply asserted that the delay will prejudice its investigation due to fading memories and the possible changed condition of the equipment, which is insufficient to demonstrate prejudice (see Matter of Thomas, 118 A.D.3d at 538, 988 N.Y.S.2d 152;  Renelique, 72 A.D.3d 596, 899 N.Y.S.2d 237;  Braiman v. New York City Hous. Auth., 169 A.D.2d 450, 564 N.Y.S.2d 152 [1st Dept. 1991] ).  Accordingly, in light of the relatively short delay in giving notice of claim and the absence of any record evidence showing that the City would be substantially prejudiced in defending and investigating the claim, we exercise our discretion to grant the application (see Matter of Newcomb, 28 N.Y.3d at 465, 45 N.Y.S.3d 895, 68 N.E.3d 714;  see generally Gecaj v. Gjonaj Realty & Mgt. Corp., 149 A.D.3d 600, 602, 51 N.Y.S.3d 74 [1st Dept. 2017] ).