Opinion
2019–09156 Index No. 616015/18
06-01-2022
In the Matter of Karen A. WIEMAN–GIBSON, appellant, v. COUNTY OF SUFFOLK, respondent.
Celino & Barnes, P.C., Garden City, NY (John Lavelle of counsel), for appellant.
Celino & Barnes, P.C., Garden City, NY (John Lavelle of counsel), for appellant.
BETSY BARROS, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the petitioner appeals from an order of the Supreme Court, Suffolk County (Robert F. Quinlan, J.), dated June 6, 2019. The order denied the petition and, in effect, dismissed the proceeding.
ORDERED that the order is affirmed, without costs or disbursements.
On August 16, 2017, the petitioner allegedly was injured when she tripped and fell on an uneven or broken sidewalk located adjacent to the Suffolk County Police Department Headquarters, which is owned by the respondent, County of Suffolk. In August 2018, the petitioner commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served upon the County nunc pro tunc. In an order dated June 6, 2019, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.
"Pursuant to General Municipal Law § 50–e(5), a court has the discretion to permit the service of a late notice of claim" ( Matter of Camet v. County of Suffolk, 100 A.D.3d 882, 882, 954 N.Y.S.2d 575 ). " ‘In determining whether to grant a petition for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, [the] court must consider all relevant circumstances, including whether 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, whether the delay would substantially prejudice the public corporation in its defense, and whether the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim’ " ( Matter of Duke v. Westchester Med. Ctr., 196 A.D.3d 482, 483, 147 N.Y.S.3d 414, quoting Matter of Weaver v. City of New York, 138 A.D.3d 873, 874, 29 N.Y.S.3d 539 ; see General Municipal Law § 50–e[5] ). " ‘While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance’ " ( Matter of Snyder v. County of Suffolk, 116 A.D.3d 1052, 1053, 985 N.Y.S.2d 126, quoting Matter of Placido v. County of Orange, 112 A.D.3d 722, 723, 977 N.Y.S.2d 64 ).
Here, the petitioner failed to demonstrate that the County obtained timely, actual knowledge of the essential facts constituting the claim (see Matter of Government Empls. Ins. Co. v. Suffolk County Police Dept., 152 A.D.3d 517, 518, 58 N.Y.S.3d 514 ; Matter of D'Agostino v. City of New York, 146 A.D.3d 880, 880–881, 46 N.Y.S.3d 635 ). Contrary to the petitioner's contention, the fact that members of the Suffolk County Police Department may have had knowledge of her accident, without more, cannot be considered actual knowledge of the claim against the County (see Matter of D'Agostino v. City of New York, 146 A.D.3d at 881, 46 N.Y.S.3d 635 ; Matter of Mitchell v. Town of Greenburgh, 96 A.D.3d 852, 853, 946 N.Y.S.2d 220 ). In addition, the petitioner failed to annex to her petition an "Aided Report" allegedly executed by the police at the time of the accident, and therefore the contents of that report, and whether it describes the accident while "making a connection between the petitioner's injuries and negligent conduct on the part of the [County]," cannot be determined ( Matter of D'Agostino v. City of New York, 146 A.D.3d at 881, 46 N.Y.S.3d 635 [internal quotation marks omitted]; see Matter of Johnson v. County of Suffolk, 167 A.D.3d 742, 90 N.Y.S.3d 84 ; cf. Matter of Government Empls. Ins. Co. v. Suffolk County Police Dept., 152 A.D.3d 517, 58 N.Y.S.3d 514 ; Matter of Jaffier v. City of New York, 148 A.D.3d 1021, 51 N.Y.S.3d 108 ). The petitioner also failed to provide a reasonable excuse for her failure to serve a timely notice of claim (see Matter of Nunez v. Village of Rockville Ctr., 176 A.D.3d 1211, 1214, 111 N.Y.S.3d 71 ; Matter of Snyder v. County of Suffolk, 116 A.D.3d at 1053, 985 N.Y.S.2d 126 ; Matter of Destine v. City of New York, 111 A.D.3d 629, 629, 974 N.Y.S.2d 123 ), or sustain her initial burden of presenting some evidence or plausible argument to support a finding that the County would not be substantially prejudiced by the filing of a late notice of claim (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; Rodriguez v. Westchester Med. Ctr. [WMC], 196 A.D.3d 659, 660, 152 N.Y.S.3d 456 ; Matter of Duke v. Westchester Med. Ctr., 196 A.D.3d 482, 147 N.Y.S.3d 414 ).
Accordingly, the Supreme Court providently exercised its discretion in denying the petition and, in effect, dismissing the proceeding.
BARROS, J.P., RIVERA, MILLER and DOWLING, JJ., concur.