Williams v New York City Hous. Auth.

2024 NY Slip Op 33050(U)

August 30, 2024

Supreme Court, New York County

Docket Number: Index No. 154277/2024

Judge: Lyle E. Frank

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 13 

INDEX NO. 154277/2024 

RECEIVED NYSCEF: 08/30/2024 

PRESENT: 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

HON. LYLE E. FRANK PART 

Justice 

11M 

---------------------------------------------------------------------------------X INDEX NO. 154277/2024 

ETTA WILLIAMS 

Plaintiff, 

- V -

THE NEW YORK CITY HOUSING AUTHORITY, 

Defendant. 

---------------------------------------------------------------------------------X 

MOTION DATE 05/07/2024 

MOTION SEQ. NO. 001 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 9, 10, 11, 12 

were read on this motion to/for LEAVE TO FILE 

Petitioner moves this court pursuant to General Municipal Law (GML) § 50-(e) seeking 

leave to file a late notice of claim for injuries allegedly sustained as a result of a slip and fall on 

October 12, 2023. Respondents oppose the instant petition. 1 

Legal Standard 

It is well settled law that granting a petition to file a late notice of claim is discretionary. 

GML § 50-e (5), which pertains specifically to an application to file a late notice of claim, states 

in pertinent part that, "Upon application, the court, in its discretion, may extend the time to serve 

a notice of claim ... [and] the court shall consider, in particular, whether the public corporation or 

its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting 

the claim within the time period specified ... or within a reasonable time thereafter. The court 

shall also consider all other relevant facts and circumstances, including, ... whether the delay in 

serving the notice of claim substantially prejudiced the public corporation in maintaining its 

defense on the merits." The burden rests on petitioner to establish lack of prejudice. If petitioner 

1 The Court would like to thank Hailee Stangeby and Zach Hoffman for their assistance in this matter. 

154277/2024 WILLIAMS, ETTA vs. THE NEW YORK CITY HOUSING AUTHORITY 

Motion No. 001 

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NYSCEF DOC. NO. 13 

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satisfies its burden, the burden then shifts to the respondent to show that they are substantially 

prejudiced by the late service. (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 

455,466 [2016]). 

Additionally, it is well settled that courts consider "whether the movant demonstrated a 

reasonable excuse for the failure to serve the notice of claim within the statutory time frame." 

(see GML § 50-e [51). The presence or absence of any one factor is not determinative. 

(Velazquez v City ofN.Y Health and Hasps. Corp. [Jacobi Med. Ctr.}, 69 AD3d 441,442 [1st 

Dept 2010], quoting Dubowy v City of New York, 305 AD2d 320, 321 [1st Dept 2003].) 

Specifically, the failure to assert a reasonable excuse, alone, is not fatal to the application. 

Velazquez v City of N. Y Health and Hasps. Corp. [Jacobi Med. Ctr.], citing (Ansong v City of 

NY, 308 AD2d 333 [1st Dept 2003].) 

In the context of GML § 50-e, "actual knowledge" means that the respondent acquired 

knowledge of the essential facts forming the basis of the claim, not simply knowledge of the 

occurrence of an accident. Kim v City of New York, 256 AD2d 83 [1st Dept 1998], app. Denied, 

93 NY29 896 [1999]. Petitioner has the burden of establishing this element. Washington v City of 

New York, 72 NY2d 881 [1988]. 

Discussion 

Petitioner offers a reasonable excuse for the cause of the delay in this action. In this 

instance, the reason for delay is law office failure, specifically a miscommunication between a 

private investigator and the law office, consequently leading to the delay in the timely filing of 

the claim. Once this Petitioner was made aware of the mistake on April 9, 2024, a notice of claim 

was immediately served on respondent 

154277/2024 WILLIAMS, ETTA vs. THE NEW YORK CITY HOUSING AUTHORITY 

Motion No. 001 

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The Court also finds that the respondent received notice of the essential facts of the claim 

a reasonable time after the 90-day period. Here, the notice of claim was filed less than 90 days 

following the end of the 90-day period set out by statute. At the time of the notice being given, 

the respondent was provided the time, date, and location of the incident, as well as a photograph 

showing the alleged defect. 

Finally, the petitioner has shown the respondent was not prejudiced. The condition in 

question was allegedly a long-standing condition, and the respondent could have investigated the 

condition immediately upon receiving the notice of claim. While it is possible that the condition 

could have changed in the time period from the end of the statutory period to the filing of the 

notice of claim, that is an issue for discovery and trial and should not be the basis of denying this 

petition, where the factors to this Court otherwise weigh heavily in favor of petitioner. 

Moreover, the respondent failed to answer the lack of prejudice shown by the petitioner with by 

demonstrating substantial prejudice, other than conclusory statements. 

Accordingly, it is hereby 

ADJUDGED that the petition for leave to serve a late notice of claim is granted, and the 

notice of claim previously filed by petitioner is deemed timely served nunc pro tune; and it is 

further 

ORDERED that petitioner shall commence an action and purchase a new index number in 

the event a lawsuit arising from this notice of claim is filed. 

154277/2024 WILLIAMS, ETTA vs. THE NEW YORK CITY HOUSING AUTHORITY 

Motion No. 001 

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8/30/2024 

DATE 

CHECK ONE: 

~ CASE DISPOSED 

GRANTED □ DENIED 

APPLICATION: SETTLE ORDER 

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN ~ 

INDEX NO. 154277/2024 

RECEIVED NYSCEF: 08/30/2024 

LYLE E. FRANK, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

□ OTHER 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ REFERENCE 

154277/2024 WILLIAMS, ETTA vs. THE NEW YORK CITY HOUSING AUTHORITY 

Motion No. 001 

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