### 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 NEWYORK 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 Petitionermoves this courtpursuant to 

### GeneralMunicipalLaw (GML) § 50-(e) seeking leave to file a late notice ofclaim for injuries allegedly sustained as a result ofa slip and fall on October 12, 2023. Respondents oppose the instant petition. 1 

### LegalStandard It is well settled law that granting a petition to file a late notice ofclaimis discretionary. 

### GML § 50-e (5), which pertains specifically to an application to file a late notice ofclaim, states in pertinent partthat, "Upon application, the court, in its discretion, may extend the time to serve
a notice ofclaim
... [and] the court shall consider, in particular, whetherthe public corporation or its attorney orits insurance carrier acquired actual knowledge ofthe 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,
...whetherthe delay in serving the notice ofclaim substantiallyprejudiced the public corporation in maintaining its defense on the merits." Theburdenrests on petitioner to establish lack ofprejudice. Ifpetitioner

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

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### [* 1]NYSCEF DOC. NO. 13 INDEX NO. 154277/2024 RECEIVED NYSCEF: 08/30/2024

satisfies its burden, the burden then shifts to the respondent to show that they are substantially prejudicedby 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 "whetherthe movant demonstrated a reasonable excuse for the failure to serve the notice ofclaim within the statutory time frame." (see 

### GML § 50-e [51). The presence or absence ofany one factor is not determinative. 

### (Velazquez v 

### City ofN.Y Health andHasps. Corp. [JacobiMed. 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 andHasps. Corp. [Jacobi Med. Ctr.], citing 

### (Ansong 

### v City of NY, 308 AD2d 333 [1st Dept 2003].) In the context ofGML § 50-e, "actual knowledge" means that the respondent acquired knowledge ofthe essential facts forming the basis ofthe claim, not simplyknowledge ofthe
occurrence ofan accident. 

### Kim v City of New York, 256 AD2d 83 [1st Dept 1998], app. Denied, 93 NY29 896 [1999]. Petitionerhas the burden ofestablishing this element. 

### Washington v City of New York, 72 NY2d 881 [1988]. 

### Discussion Petitioner offers a reasonable excuse for the cause ofthe 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 Petitionerwas made aware ofthe mistake on April 9, 2024, a notice ofclaim
was immediately served on respondent

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### The Court also finds that the respondent received notice ofthe essential facts ofthe claim
a reasonable time after the 90-dayperiod. Here, the notice ofclaimwas filed less than 90 days following the end ofthe 90-dayperiod set outby statute. At the time ofthe notice being given, the respondent was provided the time, date, and location ofthe incident, as well as aphotograph showing the alleged defect. Finally, the petitionerhas shown the respondent was not prejudiced. The condition in question was allegedly a long-standing condition, and the respondent could have investigated the condition immediatelyupon receiving the notice ofclaim. While it is possible that the condition could have changed in the time period from the end ofthe statutory period to the filing ofthe notice ofclaim, that is an issue for discovery and trial and should notbe the basis ofdenying this petition, where the factors to this Court otherwise weigh heavily in favor ofpetitioner. Moreover, the respondent failed to answer the lack ofprejudice shown bythe petitionerwith by demonstrating substantial prejudice, other than conclusory statements. Accordingly, it is hereby ADJUDGED that the petition for leave to serve a late notice ofclaim is granted, and the notice of claim previously filed by petitioner is deemed timely served 

### nuncpro tune; and it is further ORDERED that petitioner shall commence an action and purchase anew index number in the event a lawsuit arising from this notice ofclaim is filed.

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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

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