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PETITIONER’S “PREOCCUPATION WITH HIS INJURIES, TREATMENT AND RECOVERY” WAS DEEMED A REASONABLE EXCUSE FOR FAILURE TO TIMELY FILE A NOTICE OF CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s request for leave to file a late notice of claim should have been granted. Petitioner fell onto the tracks at a subway station and was struck by a train. Evidence petitioner was “preoccupied with his injuries, treatment and recovery” constituted a reasonable excuse for the delay in filing the notice:

… [P]etitioner demonstrated that the respondents acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident based on the respondents’ prompt and thorough investigation of the accident, which included interviews of the train operator and analysis regarding the speed of the train and when the train’s emergency brake was engaged … . Moreover, since the respondents acquired timely knowledge of the essential facts constituting the claim, the petitioner met his initial burden of showing that the respondents would not be prejudiced by the late notice of claim … . In response to the petitioner’s initial showing, the respondents failed to come forward with particularized evidence showing that the late notice substantially prejudiced their ability to defend the claim on the merits … .

Further, contrary to the respondents’ contention, the petitioner demonstrated a reasonable excuse for his delay in serving the notice of claim. “A petitioner may be able to establish a reasonable excuse for not timely serving a notice of claim based on an injury or medical condition, but only ‘through admissible medical evidence that he [or she] was incapacitated to such an extent that he [or she] could not have complied with the statutory requirement'” … . However, “even absent incapacitation, a reasonable excuse may be established by an allegation that a petitioner was more concerned and preoccupied with his or her alleged injuries . . . than with retaining counsel to pursue a legal claim, but only when such an allegation is supported by medical evidence” … . Here, the petitioner sufficiently established a reasonable excuse for his delay in serving a notice of claim based on his preoccupation with his injuries, treatment, and recovery, including the required amputation of his lower right leg, and his extended stay at a rehabilitation center as he relearned how to walk … . Matter of Nash v New York City Tr. Auth., 2026 NY Slip Op 05399, Second Dept 9-23-26

Practice Point: Here petitioner was struck by a subway train and his treatment included amputation of his lower right leg. Petitioner’s “preoccupation with his injuries, treatment and recovery” was deemed a reasonable excuse for failing to timely file a notice of claim.​

 

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