You are here: / / PLAINTIFF’S MOTION TO DEEM A NOTICE OF CLAIM TIMELY SERVED IN THIS...
, , ,

PLAINTIFF’S MOTION TO DEEM A NOTICE OF CLAIM TIMELY SERVED IN THIS FALSE ARREST AND BATTERY ACTION AGAINST THE CITY DEFENDANTS SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S EXCUSE FOR LATE FILING WAS INADEQUATE; PLAINTIFF DID NOT SHOW THE CITY DEFENDANTS HAD TIMELY KNOWLEDGE OF THE NATURE OF THE CLAIM; AND PLAINTIFF DID NOT SHOW THE CITY WAS NOT PREJUDICED BY THE 11-MONTH DELAY IN FILING (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to deem a notice of claim timely served should not have been granted. The excuse for failing to timely file was not sufficient, plaintiff failed show the city defendants had timely knowledge of the claim, and plaintiff did not demonstrate the city defendants were not prejudiced the the 11-month delay in filing the notice:

Plaintiff’s averment that he was unaware of the time limits necessary to file a notice of claim and initially did not retain counsel after being released from custody because he was focusing on the criminal charges against him are not acceptable excuses for failing to file a timely notice of claim … .

Furthermore, plaintiff failed to submit any evidence establishing that defendants acquired actual knowledge of the essential facts constituting the claims within 90 days of the accrual of the claims or within a reasonable time thereafter … . Plaintiff’s allegations that NYPD officers participated in his false arrest and detention and that they assaulted and battered him do not satisfy plaintiff’s burden of establishing that defendants acquired actual knowledge of the essential facts because his allegations do not constitute facts or evidence … . Plaintiff’s allegation that defendants must have records regarding his arrest, detention, and prosecution is also unavailing, as “the alleged existence of records does not suffice to establish actual knowledge” … .

Since plaintiff failed to make an initial showing that defendants were not prejudiced by the delay of about 11 months in filing the notice of claim, the burden never shifted to defendants to make a particularized showing of prejudice to their ability to defend on the merits … . Waddell v City of New York, 2026 NY Slip Op 02357, First Dept 4-16-26

Practice Point: Consult this decision for insight into the factors a court will consider when determining whether a late notice of claim should be allowed.

 

You might also like
IN A COMPREHENSIVE DECISION ANALYZING THE ELEMENTS OF PROOF IN A SLIP AND FALL CASE, INCLUDING EXPERT OPINION EVIDENCE, THE 1ST DEPARTMENT DETERMINED THE DEFENDANT STORE DEMONSTRATED IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL KNOWLEDGE OF A PUDDLE OF WATER IN FRONT OF AN ICE MACHINE (FIRST DEPT).
THE CONTRACTOR RETAINED PLAINTIFF’S EMPLOYER TO INSTALL AN OIL TANK; THE CONTRACTOR DID NOT EXERCISE SUPERVISION AND CONTROL OVER PLAINTIFF’S WORK; PLAINTIFF WAS INJURED WHEN A PIECE OF THE TANK BROKE OFF AND STRUCK HIM; THE LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION AGAINST THE CONTRACTOR WERE DISMISSED (FIRST DEPT).
RESPONDENT, THE PREVAILING PARTY IN AN ARBITRATION, WAS ENTITLED TO ATTORNEY’S FEES FOR THE SUBSEQUENT ARTICLE 75 PROCEEDING TO VACATE THE AWARD AND FOR THE APPEAL TO THE APPELLATE DIVISION (FIRST DEPT).
Criteria for Balancing the Need for a Public Trial and First Amendment Rights (Freedom of the Press) With the Defendant’s Right to a Fair Trial Discussed in Some Detail—Here the Court’s Sealing of Some Records and Closures of the Courtroom Reflected a Proper Discretionary Balance
NO RECORD DEMONSTRATING THE TRIAL JUDGE READ THE NOTES FROM THE JURY TO THE PARTIES VERBATIM PRIOR TO DISCUSSING RESPONSES; THAT WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL DESPITE LACK OF PRESERVATION.
Proceedings Pursuant to CPL 440.10 Required to Determine Whether Defense Counsel Was Ineffective for Failing to Move to Reopen the Suppression Hearing When Trial Evidence Called Into Question the Arresting Officer’s Credibility
Penalty Which Effectively Made It Impossible for an Architect to Practice His Profession Too Severe
A MUTUAL MISTAKE IN AN AGREEMENT CONCERNING THE PRICE OF SHARES OF STOCK WARRANTED REFORMATION OF THE CONTRACT (FIRST DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

A POLICE OFFICER INTERVIEWED AN EYEWITNESS AND CREATED A “PROBABLE CAUSE... THE FOURTH TRIAL, AT WHICH DEFENDANT WAS CONVICTED OF MURDER AND WEAPON POSSESSION,...