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PETITIONER SHOULD NOT HAVE BEEN GRANTED LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE COUNTY IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner in this slip and fall case should not have been allowed file a late notice of claim. The fact that county personnel responded to the scene of her injuries did not demonstrate the county had timely knowledge of the potential lawsuit. The late notice was served 50 days after the expiration of the 90 time-limit and therefore did not provide notice within a reasonable time. The petitioner’s injuries did not constitute an adequate excuse. And the petitioner did not provide any evidence the county would not be prejudiced by the late notice:

… [T]he fact that members of the Nassau County Police Department and a County ambulance responded to the scene and tended to her injuries, without more, cannot be considered actual knowledge of the essential facts constituting the claim against the County … . The petitioner failed to present any evidence to demonstrate that the County had knowledge of the circumstances of the accident from which it could “readily infer” that a “potentially actionable wrong had been committed” by it … .  Moreover, the late notice of claim, served upon the County without leave of court 50 days after the 90-day statutory period had expired, was served too late to provide the County with actual knowledge of the essential facts constituting the claim within a reasonable time after the 90-day statutory period expired … .

The petitioner also failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim. The petitioner’s conclusory assertion that her injuries prevented her from making timely service, without any supporting medical documentation or evidence, was insufficient to constitute a reasonable excuse … .

… [T]he petitioner failed to come forward with “some evidence or plausible argument” that the County will not be substantially prejudiced in maintaining a defense on the merits as a result of the delay in commencing this proceeding and the lack of timely, actual knowledge of the essential facts constituting the claim … . Matter of Lang v County of Nassau, 2022 NY Slip Op 06245, Second Dept 11-9-22

Practice Point: In this slip and fall case: (1) the fact that county personnel responded to the scene when petitioner slipped and fall did not demonstrate the county had timely knowledge of the potential lawsuit; (2) the late notice served 50 days after the 90-day time-limit did not provide notice within a reasonable time; (3) the petitioner’s injuries did not constitute an excuse; and (4) the petitioner did not present evidence the county would not be prejudiced by the delay.

 

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