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BECAUSE, BASED ON A LINE OF DUTY REPORT, THE CITY HAD TIMELY KNOWLEDGE OF THE CIRCUMSTANCES AND LOCATION OF PETITIONER’S SLIP AND FALL, THE CITY WAS NOT PREJUDICED BY A DELAY IN FILING THE NOTICE OF CLAIM; THE PETITION FOR LEAVE TO FILE THE LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE THE ABSENCE OF A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s application for leave to file a late notice of claim in a slip and fall case should have been granted, despite petitioner’s failure to provide a reasonable excuse for the delay. The city had timely notice of the incident based on a line of duty report, and the city, because it had timely notice, was not prejudiced by the delay:

The line-of-duty injury report prepared and filed shortly after the petitioner’s accident provided the City with timely actual knowledge of the essential facts constituting the claim. Further, its specificity regarding the location and circumstances of the incident permitted the City to readily infer that a potentially actionable wrong had been committed … .

Furthermore, as the City acquired timely knowledge of the essential facts constituting the claim, the petitioner met his initial burden of showing that the City would not be prejudiced by the late notice of claim … . In response to the petitioner’s initial showing, the City failed to come forward with particularized evidence demonstrating that the late notice of claim substantially prejudiced its ability to defend the claim on the merits … .

Since the City had actual knowledge of the essential facts underlying the claim and no substantial prejudice to the City was demonstrated, the petitioner’s failure to provide a reasonable excuse for the delay in serving the notice of claim did not serve as a bar to granting leave to serve a late notice of claim … .  Matter of Brown v City of New York, 2023 NY Slip Op 03693, Second Dept 7-5-23

Practice Point: Where the municipality, by virtue of a report, has timely and specific knowledge of a potential claim, a petition for leave to file a late notice of claim may be granted even where, as here, the petitioner does not have a reasonable excuse for the delay.

 

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