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THE QUESTION WHETHER THE MUNICIPALITY TIMELY RECEIVED ACTUAL NOTICE OF THE CLAIM IS MORE IMPORTANT THAN THE QUESTION WHETHER THERE IS A REASONABLE EXCUSE FOR MISSING THE 90-DAY DEADLINE; HERE THE PETITIONER DID NOT HAVE A REASONABLE EXCUSE BUT THE MUNICIPALITY DID RECEIVE TIMELY ACTUAL NOTICE; LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, noting that the absence of a reasonable excuse is not dispositive, determined petitioner should have been granted leave to file a late notice of claim against the New York City Housing Authority (NYCHA). Petitioner, a plumber, allegedly tripped over a piece of rebar protruding from the ground at a construction site:

Here, while the petitioner concedes that his claim of clerical error does not qualify as a reasonable excuse for his delay in serving a notice of claim, “the absence of a reasonable excuse is not, standing alone, fatal to the petitioner’s application” … .

While the lack of a reasonable excuse is not dispositive on an application for leave to serve a late notice of claim, “whether the municipality acquired timely actual knowledge of the essential facts constituting the claim is of great importance” … . Here, while there is no proof that the petitioner served the notice of claim upon NYCHA on January 27, 2020, NYCHA admits to receiving the first petition on or about January 31, 2020, less than three weeks after the expiration of the 90-day notice period. NYCHA additionally admits that it was able to schedule and conduct a General Municipal Law § 50-h hearing with the petitioner on April 20, 2020. Matter of Herry v New York City Hous. Auth., 2025 NY Slip Op 01928, Second Dept 4-2-25

Practice Point: In determining a request for leave to file a late notice of claim, whether the petitioner has a reasonable excuse for failing to file the notice of claim within 90 days is less important than whether the municipality timely received actual notice of the claim. Here the excuse was not valid but the municipality received timely notice. The request for leave to file a late notice should have been granted.

 

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