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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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PURSUANT TO GENERAL MUNICIPAL LAW 50-H, IT WAS THE MUNICIPALITY’S, NOT THE CLAIMANT’S, OBLIGATION TO RESCHEDULE THE 50-H EXAMINATION AFTER CLAIMANT’S COUNSEL WITHDREW; THEREFORE THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED BASED ON CLAIMANT’S FAILURE TO APPEAR AT THE EXAMINATION (SECOND DEPT). ​

The Second Department, reversing Supreme Court on an issue first raised on appeal, determined claimant’s failure to appear at an oral examination pursuant to General Municipal Law section 50-h did not warrant dismissal of the complaint. The scheduled examination did not take place because claimant’s counsel withdrew. Pursuant to the statute, it was the municipality’s, not the claimant’s, obligation to reschedule the examination:

Although [plaintiff’s] contention is raised for the first time on appeal, we reach the contention because it presents a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture … .

“‘The purpose of General Municipal Law § 50-h is to enable a municipality to make a prompt investigation of the circumstances of a claim by examining the claimant about the facts of the claim'” … . “The oral examination of a claimant pursuant to General Municipal Law § 50-h serves to supplement the notice of claim and provides an investigatory tool to the municipality, with a view toward settlement” … . Generally, such examination must be conducted within 90 days of the service of the demand (see General Municipal Law § 50-h[5]). “‘Compliance with a demand for an oral examination pursuant to General Municipal Law § 50-h and Public Housing Law § 157(2) is a condition precedent to the commencement of an action against the defendant New York City Housing Authority'” … , and a plaintiff’s failure to so comply warrants dismissal of the action … .

However, pursuant to General Municipal Law § 50-h(5), “[i]f the claimant requests an adjournment or postponement beyond the ninety day period, the [municipality] shall reschedule the [examination] for the earliest possible date available.” Thus, “[w]hen . . . the [examination] has been postponed indefinitely beyond 90 days after service of the demand and the municipality does not reschedule the [examination], a plaintiff’s failure to appear for a[n examination] will not warrant dismissal of the complaint” … . Jones v New York City Hous. Auth., 2026 NY Slip Op 05293, Second Dept 9-16-26

Practice Point: Pursuant to General Municipal Law 50-h, if a claimant requests an adjournment or a postponement of a 50-h examination, it is the municipality’s, not the claimant’s, obligation to reschedule.

 

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THE SUFFOLK COUNTY CODE PROVISIONS WHICH ALLOW THE SEIZURE AND FORFEITURE OF VEHICLES USED BY DRUNK DRIVERS IS CONSTITUTIONAL (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice McCormack, determined the provisions of the Suffolk County Code which provide for the seizure and forfeiture of vehicles used by drunk drivers is constitutional:

On this appeal, we are called upon to consider the validity of Suffolk County’s civil forfeiture statute, codified in chapter 420, article II (hereinafter chapter 420) of the Code of Suffolk County (hereinafter the Code), pursuant to which a vehicle being operated by the defendant Hassan Qamar (hereinafter the defendant) was seized at the time of his arrest for driving while intoxicated. The defendant challenges the validity of chapter 420 of the Code on three bases: (1) that the procedures relating to the post-seizure hearings conducted pursuant thereto violate article VI of the New York State Constitution, and deprived him of due process of law, (2) that the provisions of chapter 420 of the Code are preempted by State law, and (3) that the forfeiture of his vehicle constitutes an excessive fine prohibited by the State and Federal Constitutions. For the reasons that follow, we hold that the defendant’s challenges to the procedures involving the post-seizure hearing have been rendered academic, and that there is no merit to his remaining challenges. Accordingly, we affirm the judgment. * * *

… [A] Suffolk County Police Department (hereinafter the SCPD) police officer observed the defendant operating a Nissan Altima (hereinafter the vehicle) on Pulaski Road in Huntington at a speed of 100 miles per hour in a 35-mile-per-hour zone and passing a steady red traffic control light. According to the felony complaint, the defendant, inter alia, had a strong odor of alcohol on his breath and admitted having “a few beers and a few shots of J[a]m[e]son[ ] W[h]iskey.” The defendant purportedly displayed “clues indicative of intoxication upon submitting to standardized field sobriety test” and submitted to a chemical breath test that resulted in a .20% blood alcohol content. The defendant was arrested and charged with aggravated driving while intoxicated per se pursuant to VTL § 1192(2-a)(a) and driving while intoxicated pursuant to VTL § 1192(3). The defendant had previously been convicted of driving while intoxicated pursuant to VTL § 1192(3) on April 1, 2015. The vehicle was seized and impounded by the SCPD pursuant to chapter 420 of the Code. * * *

… [T]he defendant pleaded guilty to aggravated driving while intoxicated per se pursuant to VTL § 1192(2-a)(a), with one prior conviction. …

 … [T]he plaintiff commenced this civil forfeiture action pursuant to chapter 420 of the Code, seeking forfeiture of the defendant’s vehicle.   Cohen v A 2019 Nissan, 2026 NY Slip Op 05158, Second Dept 9-2-26

 

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HERE THE MEDICAL RECORDS SUGGESTED INJURY ATTRIBUTABLE TO MEDICAL MALPRACTICE SO THE HOSPITAL WAS DEEMED TO HAVE HAD TIMELY NOTICE OF THE NATURE OF THE MALPRACTICE CLAIM; PLAINTIFF’S MOTION TO DEEM THE LATE NOTICE OF CLAIM TIMELY SERVED NUNC PRO TUNC SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to deem the late notice of claim timely served nunc pro tunc should have been granted in this medical malpractice action:

On August 31, 2015, the plaintiff, Estefani Tenezaca, gave birth to the infant A.J.L. (hereinafter the infant) at Elmhurst Hospital Center (hereinafter Elmhurst), a facility controlled by the defendant. The infant was born prematurely at 30 weeks gestation and was treated at Elmhurst until September 16, 2015, when she was transferred to another hospital.

In July 2016, the plaintiff, as parent and natural guardian of the infant, served a notice of claim on the defendant, alleging, among other things, medical malpractice in the defendant’s treatment of the infant. * * *

The plaintiff’s experts opined that the infant suffered a massive bilateral parenchymal hemorrhage as a result of the treatment documented in Elmhurst’s records. * * *

Inasmuch as the Elmhurst records, upon independent review, suggested injury attributable to medical malpractice, those records provided the defendant with actual knowledge of the essential facts constituting the claim … .  Additionally, the plaintiff made an initial showing that the defendant would not suffer any prejudice by the delay in serving a notice of claim, and the defendant failed to rebut that showing with particularized indicia of prejudice … . The plaintiff also established a reasonable excuse for her failure to timely serve a notice of claim … . Tenezaca v New York City Health & Hosps. Corp., 2026 NY Slip Op 05208, Second Dept 9-2-25

Practice Point: In this medical malpractice action plaintiff moved to deem the late notice of claim timely served. The medical records suggested injury attributable to malpractice. Therefore the hospital was deemed to have had timely notice of the nature of the claim.

 

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THE PETITIONERS DID NOT HAVE STANDING TO CHALLENGE THE VILLAGE’S SEQRA NEGATIVE DECLARATION WHICH ALLOWED THE CONSTRUCTION OF 98 APARTMENTS, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the petitioners did not have standing to challenge the negative declaration issued by the village respondents pursuant to the State Environmental Quality Review Act (SEQRA). The village thereby approved the construction 98 apartment units. The Second Department explained the criteria for standing in this context:

“Standing to bring a SEQRA challenge is a threshold issue, and the burden of establishing standing is on the party seeking review of governmental action on the basis of alleged procedural and substantive SEQRA violations” … . “To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … . “Economic injury is not by itself within the zone of interests which SEQRA seeks to protect” … .

Here, the petitioners alleged environmental injuries that either were economic in nature … , were not different from those that would be suffered by the public at large … , or were too speculative and conjectural to demonstrate an actual injury-in-fact … . Such allegations are insufficient to confer standing to challenge the adequacy of the Cedarhurst respondents’ environmental review of the overlay district under SEQRA. Contrary to the petitioners’ contention, their property was not sufficiently close in proximity to the proposed development so as to confer a presumption of an injury-in-fact as an adjacent property owner … . Board of Educ. of the Lawrence Union Free Sch. Dist. v Incorporated Vil. of Cedarhurst, 2026 NY Slip Op 05154, Second Dept 9-2-26

Practice Point: Consult this decision for insight into the criteria for standing to challenge a municipality’s SEQRA negative declaration. Here the village approved the construction of 98 apartments and the petitioners did not have standing to challenge the approval.

 

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PETITIONERS DID NOT LEARN OF THE BABY’S MEDICAL CONDITION UNTIL SIX MONTHS AFTER THE INDUCED LABOR; PETITIONERS REQUESTED LEAVE TO FILE A LATE NOTICE OF CLAIM FOR MEDICAL MALPRACTICE; ALTHOUGH THE HOSPITAL DID NOT HAVE TIMELY KNOWLEDGE OF THE ESSENCE OF THE CLAIM, THE HOSPITAL DID NOT DEMONSTRATE ANY PREJUDICE FROM THE DELAY BECAUSE THE MEDICAL ISSUES WERE FULLY DOCUMENTED; THE REQUEST TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioners’ request for leave to file a late notice of claim in this medical malpractice action should have been granted. Petitioner mother did not learn of her child’s medical condition until six months after her discharge from the hospital after labor was induced. Mother therefore had a reasonable excuse for failure to timely file a notice of claim. Although the hospital did not have timely knowledge of the nature of the claim, the hospital did not demonstrate any prejudice from the delay because the relevant issues were fully documented:

… [T]he court, in its discretion, must consider all relevant facts and circumstances, including, but not limited to, whether (1) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in its defense” … . Another factor to consider is whether the claimant was an infant at the time the claim arose and whether there is a nexus between infancy and delay in service … , which was the case here. “‘[T]he presence or absence of any one factor is not determinative'” … .

Here, the petitioners established a reasonable excuse for the delay, to wit, the serious medical condition of the infant petitioner, which required numerous medical appointments while the condition of the infant petitioner was being assessed … . The petitioners failed to demonstrate that NYCHHC had actual knowledge of the facts underlying the claim within 90 days after the claim arose or a reasonable time thereafter, since the hospital’s records did not evidence that the medical staff, by its acts or omissions, inflicted an injury attributable to malpractice … . However, “[s]ince the conduct at issue was fully documented in the medical records, the petitioner[s] made an initial showing that NYCHHC was not prejudiced by the delay in serving the notice of claim … , and, in response, the NYCHHC made no showing of prejudice” … . Matter of Caceres v NYC Health & Hosps., 2026 NY Slip Op 05182, Second Dept 9-2-26

Practice Point: Here the request to file a late notice of claim was granted despite the fact that the hospital did not have timely notice of the essence of the medical malpractice claim. Petitioners had a reasonable excuse for the delay and the hospital did not demonstrate any prejudice caused by the delay.

 

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IN AN ACTION ALLEGING A FRAUDULENT SCHEME TO DEREGULATE APARTMENTS, TO MAKE OUT A PRIMA FACIE CASE SUCH THAT THE FOUR-YEAR LOOK-BACK DOES NOT APPLY, PLAINTIFF NEED NOT DEMONSTRATE EACH ELEMENT OF COMMON-LAW FRAUD; SUFFICIENT INDICIA OF FRAUD OR A COLORABLE CLAIM OF A FRAUDULENT SCHEME ARE WHAT MUST BE DEMONSTRATED (FIRST DEPT).

The First Department, reversing Supreme Court upon remittitur from the Court of Appeals, over a two-justice dissent, remitted the matter to Supreme Court for application of the recently clarified standard for the prima facie demonstration of fraud in an action alleging a fraudulent scheme to deregulate apartments. The issue is whether plaintiffs presented sufficient evidence of fraud to overcome the four-year look-back provision in the former Rent Stabilization Law:

… [T]he Court [of Appeals] refined the common-law standard applied to allegations of a fraudulent scheme to deregulate apartments subject to rent stabilization on a motion to dismiss under CPLR 3211 … . More specifically, [the Court of Appeals] “made clear that, for the fraud exception [to the four-year lookback period in the former Rent Stabilization Law § 26-516 (a)] to apply, a plaintiff need not demonstrate each element of common-law fraud and instead must put forth sufficient indicia of fraud or a colorable claim of a fraudulent scheme” … .

Parallel to the Court of Appeals’ development of the common law applicable to fraudulent deregulation claims, the legislature addressed the fraudulent deregulation standard by statute … . Under the legislature’s statutory amendments, the relevant inquiry is whether the landlord ” ‘knowingly engaged in [a] fraudulent scheme [to deregulate] after a consideration of the totality of the circumstances’ ” … To date, the Court of Appeals has not had occasion to “address to what extent this legislation differs from [the] common-law rule, and, if there is any difference, the impact or applicability of that legislation” … . Aras v B-U Realty Corp., 2026 NY Slip Op 04983, First Dept 8-13-26

​Practice Point; Consult this decision for insight into what a plaintiff must allege or demonstrate to survive a motion to dismiss or to warrant summary judgment in an action alleging a fraudulent scheme to deregulate apartments and seeking the “fraud exception” to the statutory four-year look-back for damages.

 

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THE TOWN PLACED A $24,000 LIEN ON PLAINTIFF’S PROPERTY FOR REPAIR WORK DONE BY THE TOWN BEFORE THE PROPERTY WAS TRANSFERRED TO PLAINTIFF; PLAINTIFF BROUGHT A PROCEDURAL-DUE-PROCESS ACTION AGAINST THE TOWN (42 USC 1983); THE ACTION FAILED BECAUSE OF THE AVAILABILITY OF A CPLR ARTICLE 78 PROCEEDING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town was entitled to summary judgment dismissing plaintiff’s 42 USC 1983 action alleging a violation of procedural due process. Plaintiff, after purchasing the property, was assessed over $24,000 for repairs to the property paid for by the town and necessitated by the prior owner’s failure to maintain the property. The procedural due process claim failed because plaintiff had the option of bringing an Article 78 proceeding:

“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment” … . “‘Due process is flexible and calls for such procedural protections as the particular situation demands'” … . In determining what due process requires in a specific context, courts consider “(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail” … .

Here, although the plaintiff’s property interest was affected by the special assessment and lien, the risk of erroneous deprivation was remedied by the availability of a proceeding pursuant to CPLR article 78 … . Accordingly, the Town demonstrated, prima facie, that it did not deprive the plaintiff of due process … . First Sovereign Equity Group, Inc. v Town of Smithtown, 2026 NY Slip Op 04928, Second Dept 8-12-26

Practice Point: Here the risk of erroneous deprivation of plaintiff’s property by the town was remedied by the availability of a CPLR article 78 proceeding. Therefore the criteria for a viable procedural-due-process action against the town were not met.

 

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IN THIS PUBLIC-BEACH SWIMMING-ACCIDENT CASE, THE PETITIONER SHOULD NOT HAVE BEEN GRANTED PERMISSION TO FILE A LATE NOTICE OF CLAIM; THE TOWN DID NOT HAVE TIMELY KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM; THE PETITIONER DID NOT HAVE A GOOD EXCUSE; THE TOWN MADE A PARTICULARIZED SHOWING OF PREJUDICE; AND THE CLAIM WAS CLOSE TO MERITLESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition to serve a late notice of claim against the town in this swimming-injury case should not have been granted. Petitioner was floating 100 yards beyond the designated swimming area at a town beach with the back of his head toward the ocean when a wave crashed over him, forcing him to the ocean floor and causing a severe spinal cord injury. The Second Department went through all the criteria for allowing late notice and found that the facts fell short:

… [T]he petitioner failed to establish that the Town had actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter. “‘[K]nowledge of the accident itself and the seriousness of the injury does not satisfy this enumerated factor where those facts do not also provide the public corporation with knowledge of the essential facts constituting the claim'” … . “Generally, the phrase ‘facts constituting the claim’ is understood to mean the facts which demonstrate a connection between the happening of the accident and any negligence on the part of the public corporation” … . * * *

… [I]n light of the fact that members of his family appeared to be considering the making of a claim when they returned to the accident scene one week after the accident and interviewed lifeguards, the petitioner failed to demonstrate a reasonable excuse for failing to serve a timely notice of claim, or for failing to serve a notice of claim until 67 days after meeting with attorneys … . * * *

… [T]he Town made a “particularized evidentiary showing that [it] will be substantially prejudiced if the late notice is allowed” … . The Town submitted, among other things, an affirmation of its lifeguard captain, who stated that he spoke to the petitioner and his companions immediately after the accident and recalled the petitioner telling him that the petitioner had consumed alcohol, but he no longer recalled what the petitioner said about his alcohol use or other details about the accident. * * *

… [T]he petitioner’s claim that the lifeguards had a duty to warn him that he was beyond the designating swimming area and to warn him that it was dangerous to float with his back to the ocean borders on being patently meritless … . Matter of Cataldo v Town of E. Hampton, 2026 NY Slip Op 04946, Second Dept 8-12-26

Practice Point: Consult this decision for a concise factual explanation for the denial of permission to file a late notice of claim.

 

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PETITIONER POLICE OFFICER WAS TERMINATED FOR MISCONDUCT AND SOUGHT TO BRING A CPLR ARTICLE 78 PROCEEDING; THE CITY CHARTER REQUIRED THE FILING OF A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR ANY NONTORT ACTION AGAINST THE CITY; PETITIONER FAILED TO TIMELY FILE A NOTICE OF CLAIM; BECAUSE THE CHARTER MAKES NO PROVISION FOR SERVING A LATE NOTICE OF CLAIM IN NONTORT ACTIONS, SUPREME COURT DID NOT HAVE AUTHORITY TO GRANT PETITONER’S REQUEST FOR PERMISSION TO SERVE A LATE NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court did not have the authority to grant the petitioner, a police officer terminated for misconduct, an extension of time to file a late notice of claim against the city. The city charter did not have a provision for service of a late notice for nontort actions. Petitioner was attempting to bring a CPLR article 78 proceeding contesting his termination:

Section C6.47(A) of the City Charter for the City of Newburgh provides that, for nontort claims, no action or special proceeding shall be maintained against the City unless “a written verified claim . . . was served on the City . . . within three months after the accrual of such claim.” The service of a notice of claim is thus a condition precedent to maintaining an action or proceeding against the City … . “[S]tatutory requirements conditioning suit against a governmental entity must be strictly construed” … .

Here, it is undisputed that the petitioner failed to serve a notice of claim within three months after his claim accrued, as required by section C6.47 of the City Charter for the City of Newburgh. Moreover, unlike other notice statutes, section C6.47 of the City Charter for the City of Newburgh does not provide courts with the authority to extend the time for the service of a notice of claim arising upon nontort claims … . Consequently, since this proceeding is not founded upon tort, the Supreme Court was without authority to grant the petitioner’s motion for leave to serve a late notice of claim … . Matter of Canario v City of Newburgh, 2026 NY Slip Op 04945, Second Dept 8-12-26

Practice Point: If the controlling legislation, here a city charter, makes no provision allowing a party to seek permission to serve of a late notice of claim, a court cannot grant such permission. Here the city charter did not include a “late notice” provision for nontort actions against the city.

 

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