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ALTHOUGH THE EXCUSE WAS NOT ADEQUATE PETITIONER’S APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED; RESPONDENTS HAD TIMELY NOTICE OF THE INCIDENT AND DEMONSTRATED NO PREJUDICE FROM THE DELAY (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s application for leave to file a late notice of claim should have been granted. Although the excuse was inadequate, the respondents had timely notice of the incident and were not prejudiced by the delay:

In determining whether to grant an extension, the key factors to consider are: (1) “whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame”; (2) “whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter”; and (3) “whether the delay would substantially prejudice the municipality in its defense” … .

Here, although petitioners failed to offer any reasonable excuse for their failure to timely serve a notice of claim, this failure is not, standing alone, fatal … . Indeed, petitioners sufficiently demonstrated that respondents acquired actual notice of the event within a reasonable time thereafter, and that respondents would not be substantially prejudiced in their defense by the delay. Specifically, there is a surveillance video of the accident [which]  … the claims administrator … acknowledged having in its possession approximately six months after the accident. Moreover, the operator of the lift that injured petitioner was employed by respondents.

In addition, the correspondence … suggests that … only one month after plaintiff’s accident, respondents’ insurers were aware that the claims administrator anticipated that petitioner would be asserting a claim based on the … . … Our conclusion is further supported by the relatively short delay in petitioners’ moving for leave to file a late notice of claim. Matter of Sproule v New York Convention Ctr. Operating Corp., 2020 NY Slip Op 01015, First Dept 2-13-20

 

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