Brandi v. City of New York

“Among the factors to be considered by a court in determining whether leave to serve a late notice of claim should be granted are whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter; whether the delay would substantially prejudice the municipality in maintaining its defense; and whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim” (Matter of Joy v County of Suffolk, 89 AD3d 1025 , 1026 [2011]; see General Municipal Law § 50-e [5]). While the presence or the absence of any one of the factors is not necessarily determinative (see Matter of Chambers v Nassau County Health Care Corp., 50 AD3d 1134 [2008]), whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance (see Matter of Gonzalez v City of New York, 60 AD3d 1058 , 1059 [2009]). The municipality must have notice or knowledge of the specific claim and not merely some general knowledge that a wrong has been committed (see Matter of Devivo v Town of Carmel, 68 AD3d 991 , 992 [2009]; Arias v New York City Health & Hosps. Corp. [Kings County Hosp. Ctr], 50 AD3d 830 , 832 [2008]).

Here, the petitioner failed to demonstrate that the City of New York had actual notice of the essential facts constituting her claim (see Indar v City of New York, 71 AD3d 635 , 636 [2010]). Moreover, she failed to put forward a reasonable excuse for her failure to file a timely notice of claim (see Matter of Padgett v City of New York, 78 AD3d 949 , 950 [2010]). Finally, the petitioner failed to meet her burden of establishing that the delay would not substantially prejudice the City in maintaining its defense on the merits (see Matter of Padgett v City of New York, 78 AD3d at 950 ; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138 , 152 [2008]).