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Late Notice of Claim Should Not Have Been Allowed

The Second Department reversed the trial court’s deeming a late notice of claim as timely served nunc pro tunc.  The claim was against the New York Health and Hospitals Corporation (HHC) which is not the same as the City of New York for purposes of a notice of claim.  The Second Department wrote:

The Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion. First, the plaintiff failed to demonstrate that the HHC had actual knowledge of the facts constituting the claim within 90 days after it arose or “within a reasonable time thereafter” (General Municipal Law s 50-e[5]). The fact that a police accident report was prepared by the New York City Police Department did not constitute notice to the HHC of the essential facts constituting the claim … .  * * *Moreover, the plaintiff’s mistake as to the identity of the public corporation against which her claim should be asserted was not excusable. … Finally, the plaintiff failed to demonstrate that her delay did not prejudice the HHC in its defense on the merits. The plaintiff did not serve a notice of claim upon the HHC until eight months after the 90-day period expired and then did not move for two more months to have that late notice of claim deemed timely … .  Platt v New York City Health & Hosps Corp, 2013 NY Slip Op 02733, 2nd Dept, 4-24-13

 

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