Practice point: In an action to recover damages for personal injuries resulting from a slip-and-fall, the Appellate Division reversed, and denied the plaintiff's motion, made pursuant to General Municipal Law § 50-e(5), for leave to serve a late notice of claim against nonparty New York City Housing Authority. The Appellate Division found that the plaintiff failed to provide a reasonable excuse for his failure to timely serve the notice. His saying that he first discovered the identity of the owner of the walkway at the § 50-h hearing is an unacceptable excuse, as it indicates a lack of due diligence in investigating the matter. Even if the plaintiff had made an excusable error in identifying the public corporation upon which he was required to serve the notice, he did not 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.
Student note: In determining whether a petitioner should be granted leave to serve a late notice of claim against a public housing authority, the court will consider, as key factors, whether the petitioner had a reasonable excuse for the delay in serving the notice; whether the public housing authority acquired actual knowledge of the essential facts of the claim within the statutory 90-day period or within a reasonable time thereafter; whether the petitioner made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the public housing authority will be substantially prejudiced by the delay in its defense on the merits, pursuant to General Municipal Law § 50-e[5] and Public Housing Law § 157[2].
Case: Kelly v. City of New York, NY Slip Op 06640 (2d Dep't September 27, 2017)
Here is the decision.
