Practice point: The Appellate Division reversed the motion court, and denied the petition for leave to file a late notice of claim and dismissed the complaint. Even if the mistaken identification of the municipal agency were an excusable error, the petitioner failed to proffer any excuse for the additional delay of more than seven months between the time that he discovered the error and the filing of his petition. In addition, the City did not acquire timely, actual knowledge of the essential facts constituting the petitioner's claim. The petitioner contends that the City acquired such knowledge by virtue of a police accident report made by a police officer at the accident scene. However, for a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation. Here, the report did not provide the City with actual notice of the essential facts constituting the petitioner's claim that the City was negligent in the happening of the subject accident, or that the petitioner sustained any injuries as a result of the City's alleged negligence. Finally, the petitioner failed to rebut the City's assertion that the overall 10-month delay in commencing the proceeding deprived it of the opportunity to find witnesses promptly, or otherwise conduct a timely and meaningful investigation.
Student note: In determining whether to grant leave to serve a late notice of claim, the court must consider whether (1) 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; (2) the claimant made an excusable error concerning the identity of the public corporation; (3) the delay would substantially prejudice the public corporation in its defense; and (4) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, pursuant to General Municipal Law § 50-e[5].
Case: Kuterman v. City of New York, NY Slip Op 06560 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Motion to vacate raising a jurisdictional objection and, alternatively, seeking a discretionary vacatur.
