LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
The Second Department determined plaintiff (Kelly) should not have been allowed to file a late notice of claim in this sidewalk slip and fall case. No reasonable explanation was offered and defendant housing authority did not have timely notice of the substance of the claim:
… Kelly failed to provide a reasonable excuse for his failure to serve a timely notice of claim upon NYCHA [New York City Housing Authority]. Kelly’s excuse, that he first discovered the identity of the owner of the subject walkway at the General Municipal Law § 50-h hearing, arose from a lack of due diligence in investigating the matter, which is an unacceptable excuse … . Even if Kelly made an excusable error in identifying the public corporation upon which he was required to serve a notice of claim, he failed to proffer any explanation for the additional seven-month delay between the time that he discovered the error and the filing of his application for leave to serve a late notice of claim … .
Furthermore, NYCHA did not acquire timely, actual knowledge of the essential facts constituting Kelly’s claim. Although the City was served with a notice of claim within 90 days after the accident and conducted a General Municipal Law § 50-h hearing about 5½ months after the accident, notice to the City cannot be imputed to NYCHA … . Moreover, the notice of claim, served together with the application upon NYCHA almost 10 months after the 90-day statutory period had elapsed, was served too late to provide NYCHA with actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the 90-day statutory period … .
Finally, Kelly presented no “evidence or plausible argument” that his delay in serving a notice of claim upon NYCHA did not substantially prejudice NYCHA in defending on the merits … . Kelly v City of New York, 2017 NY Slip Op 06640, Second Dept 9-27-17
NEGLIGENCE (MUNICIPAL LAW, PERMISSION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NOTICE OF CLAIM, PERMISSION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, PERMISSION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, PERMISSION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, MUNICIPAL LAW, PERMISSION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))