Practice point: In affirming the denial of the petition for leave to file a late notice of claim, the Appellate Division found that petitioners failed to explain their delay in filing the notice, pursuant to General Municipal Law § 50-e[1][a]; [5]. While they claim that the injured petitioner's
incapacity prevented him from obtaining counsel from the date of the
incident, in June, until his surgery in September, they do
not explain the two-month delay in filing the notice after they obtained counsel in October, or the delay until
the next February in seeking leave to file an untimely notice.
In addition, petitioners failed to show that respondents acquired actual
knowledge of the essential facts constituting their claim, pursuant to General
Municipal Law § 50-e[5]. While, respondents' internal reports and records contained the exact details of the
incident, there are no factual allegations in the contemporaneous
written statements of the injured petitioner's coworkers or even in petitioner's own written statement that would constitute a claim of
negligence on respondents' part. So,petitioners cannot rely on respondents records to rebut the inference of prejudice resulting from petitioners'
eight-month delay in serving the notice.
Student note: The Appellate Division also found that petitioners' cause of action is without merit. They failed to allege facts that would establish that respondents had a special duty to the injured petitioner to protect him from an assault.
Case: McGinness v. City of New York, NY Slip Op 00572 (1st Dept. 2014).
Here is the decision.
Tomorrow's issue: Deceptive business acts and practices.
