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ALTHOUGH THE SECOND ORDER TO SHOW CAUSE SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM WAS FILED TWO DAYS AFTER THE ONE-YEAR-NINETY-DAY LIMITATIONS PERIOD, THE STATUTE OF LIMITATIONS WAS TOLLED FOR THREE DAYS BETWEEN THE FILING AND THE DENIAL OF THE FIRST ORDER TO SHOW CAUSE; THE MEDICAL RECORDS PROVIDED THE MUNICIPALITY WITH NOTICE OF THE ESSENTAL FACTS OF THE CLAIM; THE MOTION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion seeking leave to file a late notice of claim was timely and should have been granted. Although the second order to show cause was submitted two days beyond the one year-and-90-day deadline for suing a municipality. the statute of limitations was tolled for three days between the filing of the first order to show cause and the denial of that first motion:

Since the time to serve a notice of claim upon a public corporation cannot be extended beyond the time limited for commencement of an action against that party … , the court lacks authority to grant a motion for leave to serve a late notice of claim made more than one year and 90 days after the cause of action accrued, unless the statute of limitations has been tolled … . “CPLR 204(a) tolls the statute of limitations while a motion to serve a late notice of claim is pending” … . Where “a court declines to sign an initial order to show cause for leave to serve a late notice of claim on procedural grounds, but a subsequent application for the same relief is granted, the period of time in which the earlier application [was] pending [is also] excluded from the limitations period” … . …

… [T]he medical records provided the defendants with actual knowledge of the essential facts constituting the plaintiff’s claim. The records evinced that a stroke code was called shortly after the plaintiff’s presentation to the hospital, that, based on an assessment of her condition, it was decided that a tissue plasminogen activator was not needed, and that it was later determined that the plaintiff had suffered a stroke but that it was too late to administer that drug.

The plaintiff further made an initial showing that the defendants would not suffer any prejudice by the delay in serving the notice of claim, and the defendants failed to rebut the showing with particularized indicia of prejudice … .

Finally, where, as here, there is actual knowledge and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim … . Ahmed v New York City Health & Hosp. Corp., 2022 NY Slip Op 02521, Second Dept 4-20-22

Practice Point: The one-year-ninety-day statute of limitations for suing a municipality is tolled for the time between submitting an order to show cause seeking leave to file a late notice of claim and the judge’s refusal to sign the order to show cause. Here, although the second order to show cause seeking leave to file a late notice was submitted two days after the one-year-ninety-day statute had run, it was timely because of the three-day toll between the filing and denial of first order to show cause. Here the medical records sufficiently notified the municipality of the essential facts of the claim, the municipality did not demonstrate prejudice and there was no need for a reasonable excuse because there was actual knowledge and no prejudice.

 

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