& Steinberg LLP, New York, NY (Edward A. Steinberg of
counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Claude
S. Platton, Victoria Scalzo, and Elina Druker of counsel;
Jacob Porter on the brief), for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, SHERI S. ROMAN,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
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, Kings County
(Genovesi, J.), dated November 13, 2015, which denied the
petition and, in effect, dismissed the proceeding.
that the order is affirmed, with costs.
December 4, 2014, the petitioner allegedly was injured when
she tripped and fell over a tree well in Brooklyn. The
petitioner belatedly served a notice of claim on the City of
New York on May 19, 2015, and thereafter commenced this
proceeding for leave to serve a late notice of claim, or to
deem her late notice of claim timely served nunc pro tunc.
The Supreme Court denied the petition and, in effect,
dismissed the proceeding. The petitioner appeals.
determining whether to grant leave to serve a late notice of
claim, a court must consider all relevant circumstances,
including whether (1) the public corporation acquired actual
knowledge of the relevant 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 maintaining a defense on the merits
(see General Municipal Law § 50-e; Luna
v City of New York, 139 A.D.3d 818, 819; Matter of
Fernandez v City of New York, 131 A.D.3d 532, 533;
Matter of Bhargava v City of New York, 130 A.D.3d
819, 820; Matter of Felice v Eastport/South Manor Cent.
School Dist., 50 A.D.3d 138, 147). "While the
presence or the absence of any one of the factors is not
necessarily determinative, whether the municipality had
actual knowledge of the essential facts constituting the
claim is of great importance" (Matter of Iacone v
Town of Hempstead, 82 A.D.3d 888, 888-889; see
Matter of Romeo v Long Is. Power Auth., 133 A.D.3d 667,
the Supreme Court providently exercised its discretion in
denying the petition for leave to serve a late notice of
claim or to deem the petitioner's late notice of claim
timely served nunc pro tunc. The petitioner did not
demonstrate that the City obtained timely, actual knowledge
of the essential facts constituting the claim. The late
notice of claim, served upon the City 76 days after the
90-day statutory period had elapsed, was served too late to
provide the City with actual knowledge of the essential facts
constituting the claim within a reasonable time after the
expiration of the statutory period (see Matter of
Bhargava v City of New York, 130 A.D.3d at 820-821;
Matter of Sanchez v City of New York, 116 A.D.3d
703, 704; Matter of Hampson v Connetquot Cent. Sch.
Dist., 114 A.D.3d 790, 791; Matter of Valila v Town
of Hempstead, 107 A.D.3d 813, 814).
petitioner also failed to demonstrate a reasonable excuse for
her failure to serve a timely notice of claim (see Matter
of Maggio v City of New York, 137 A.D.3d 1282, 1283;
Matter of Bell v City of New York, 100 A.D.3d 990;
Matter of Wright v City of New York, 99 A.D.3d 717,
718; Matter of Valentine v City of New York, 72
A.D.3d 981, 982; Matter of Portnov v City of Glen
Cove, 50 A.D.3d 1041, 1042-1043). Finally, the
petitioner failed to make an initial showing that her delay
in serving a notice of claim would not substantially
prejudice the City in maintaining a defense on the merits
(see Matter of Newcomb v Middle Country Cent. Sch.
Dist., 28 N.Y.3d 455, 456-457; Matter of Ramos v
Board of Educ. of the City of N.Y., 148 A.D.3d 909).
the Supreme Court properly denied the petition and, in