APPLICATION FOR LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DESPITE ABSENCE OF REASONABLE EXCUSE AND NOTICE BY OTHER MEANS; PURPOSE OF NOTICE OF CLAIM REQUIREMENT EXPLAINED.

The First Department, reversing Supreme Court, granted petitioner’s application to file a late notice of claim alleging injury in a slip and fall accident caused by a badly broken sidewalk in front of property owned by the New York City Housing Authority (NYCHA). Petitioner’s attorney had assumed the city, not the NYCHA, owned the abutting property. After noting that an error in identifying the correct public corporation was not a reasonable excuse, and further noting the NYCHA did not have notice of the accident by other means, the First Department explained the purpose of the notice requirement and why late notice was appropriate in this case:

 

After petitioner’s counsel realized that respondent NYCHA, not the City of New York, owned the property abutting the badly broken sidewalk where petitioner’s accident occurred, petitioner sought an extension of time to file a notice of claim under General Municipal Law § 50-e(5). That statute confers upon the court “the discretion to determine whether to grant or deny leave to serve a late notice of claim within certain parameters” … . The factors to be considered by the court include: whether the failure to identify the proper party was an “excusable error,” whether the public corporation received “actual knowledge of the essential facts constituting the claim” within 90 days of the accident or “a reasonable time thereafter,” and whether the delay “substantially prejudiced” the public corporation’s ability to defend the claim on the merits (General Municipal Law § 50-e[5]). The notice of claim requirement “is not intended to operate as a device to frustrate the rights of individuals with legitimate claims,” but to protect the public corporation from “unfounded claims” and ensure that it has an adequate opportunity “to explore the merits of the claim while information is still readily available” … .

While the error of petitioner’s counsel concerning the identity of the responsible public corporation does not provide a reasonable excuse for the delay in giving notice … , “the absence of a reasonable excuse is not, standing alone, fatal to the application” … . Although NYCHA did not receive actual notice of the accident until the petition was served, it did not contest petitioner’s assertion that the condition of the badly broken sidewalk remains unchanged since the time of the accident and that there were no witnesses to the accident, so that NYCHA will not be substantially prejudiced by the eight-month delay in providing notice (… General Municipal Law § 50-e[5]). NYCHA’s conclusory claim that the “passage of time may affect the availability or memories of potential witnesses is insufficient to establish prejudice” … . In light of the policies underlying General Municipal Law § 50-e(5), which is to be liberally construed to achieve its remedial purposes … . Matter of Richardson v New York City Hous. Auth., 2016 NY Slip Op 00909, 1st Dept 2-9-16

 

NEGLIGENCE (LATE NOTICE OF CLAIM ALLOWED DESPITE ABSENCE OF REASONABLE EXCUSE AND NOTICE BY OTHER MEANS)/MUNICIPAL LAW (NOTICE OF CLAIM, LATE NOTICE ALLOWE DESPITE ABSENCE OF REASONABLE EXCUSE AND NOTICE BY OTHER MEANS)/NOTICE OF CLAIM (LATE NOTICE ALLOWED DESPITE ABSENCE OF REASONABLE EXCUSE AND NOTICE BY OTHER MEANS)