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THE PETITIONER DID NOT DEMONSTRATE THE CITY HAD TIMELY ACTUAL NOTICE OF THE NATURE OF HER CLAIM AND HER ALLEGATION THAT HER INJURIES PREVENTED HER FROM MAKING A TIMELY CLAIM WAS NOT SUPPORTED BY MEDICAL EVIDENCE; THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against the city should not have been granted. Petitioner did not demonstrate the city had timey actual notice of the nature of the claim and did not submit medical records to support her excuse that her injuries prevented her from filing a timely notice of claim:

Petitioner failed to show that respondents had actual knowledge of the facts underlying the legal theories on which liability was predicated in the notice of claim … . Contrary to her contention, neither the police report, the NYPD complaint, nor the Department of Education occurrence report provided respondents with the facts underlying her theory of liability, as none of these documents linked the accident to any potentially actionable wrongdoing committed by them.

Although petitioner demonstrated that respondents would not suffer any prejudice by the delay in serving the notice of claim, as the alleged defect has not changed since the incident … , her assertion that the severity of her injuries precluded her from serving notice, without any supporting medical documentation or evidence, was insufficient to constitute a reasonable excuse for her delay … .

Petitioner’s submission to the motion court failed to include any medical records detailing her surgery and follow-up visits, and her petition stated that she was able to leave the apartment for her medical treatments and ultimately work remotely. Furthermore, it is not clear from the petition when she retained counsel, and a lack of due diligence in determining the identity of the parties involved is not a reasonable excuse for the failure to serve a timely notice of claim … . Matter of Kayam v City of New York, 2025 NY Slip Op 02037, First Dept 4-8-25

Practice Point: An allegation that injuries prevented the filing of a timely notice of claim should be backed up by medical records.

 

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