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State of New York 

Court of Appeals 

OPINION 

This opinion is uncorrected and subject to revision 

before publication in the New York Reports. 

No. 15 

In the Matter of Luis Jaime, 

 Respondent, 

 v. 

City of New York, 

 Appellant. 

-------------------------- 

No. 16 

In the Matter of Adan Orozco, 

 Respondent, 

 v. 

City of New York, 

 Appellant. 

Case No. 15: 

Lorenzo Di Silvio, for appellant. 

Case No. 16: 

Elina Druker, for appellant. 

TROUTMAN, J.: 

 The issue here is whether the trial courts abused their discretion in granting 

petitioners leave to serve a late notice of claim against respondent City of New York (City) 

pursuant to General Municipal Law § 50-e (5). We hold that the courts abused their 
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discretion in determining that the alleged participation of the City’s employees in an 

intentional tort, and the City’s alleged creation or possession of records related to the events 

underlying the claims, provided the City with actual knowledge of the essential facts 

constituting the claims. We therefore reverse the orders of the Appellate Division. 

I. 

Matter of Orozco v City of New York 

On July 23, 2020, petitioner Adan Orozco served a notice of claim alleging that, on 

July 26, 2018, officials of the New York City Police Department (NYPD) and the District 

Attorney’s Office1 obtained a warrant for his arrest, absent probable cause, by submitting 

to the issuing magistrate “false” and “fabricated” evidence of an unspecified nature. The 

officials allegedly arrested Orozco on the fraudulent warrant at a specified address on 

August 13, 2018 and interrogated him in an attempt to coerce him into implicating the “true 

criminal targets” of the investigation. Orozco alleged that he was then maliciously 

prosecuted with the same coercive purpose based on “patently false” and “fabricat[ed]” 

evidence of an unspecified nature that the officials provided to the prosecutor. Orozco 

allegedly was “wrongfully detained” for five months until December 24, 2018, when the 

criminal proceedings terminated in his favor. He sought to assert claims of, inter alia, false 

arrest and malicious prosecution. 

1

 Orozco specifically named the Special Narcotics Prosecutor of the City of New York, 

who is an assistant district attorney on the staff of the District Attorney’s Office of one of 

the City’s five boroughs (see Judiciary Law § 177–c; People v Viviani, 36 NY3d 564, 579 

[2021]), as well as five officials who work under the auspices of the Office of the Special 

Narcotics Prosecutor. 
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Orozco filed a petition verified by his attorney for leave to serve a late notice of 

claim, asserting that the actual knowledge of the police officers who participated in the 

arrest and prosecution may be imputed to the City, and that the City also acquired actual 

knowledge through its alleged possession of records that its officers were required to create 

during the course of the investigation and prosecution. Orozco further asserted that, 

because the City had actual knowledge, it would not be substantially prejudiced by the late 

filing. Orozco also asserted that his need to defend against the criminal charges constituted 

a reasonable excuse for his failure to serve a timely notice of claim, as did his limited 

English, his California residency, and the effects of the COVID-19 pandemic. The 

proposed notice of claim was attached to the petition, but Orozco did not submit an affidavit 

or any other evidence in support of his petition. 

In opposition, the City argued that Orozco failed to meet his initial burden of proof 

with respect to actual knowledge, substantial prejudice, or reasonable excuse. The City 

argued that knowledge acquired by a police officer during the course of an investigation 

should not be imputed to the City, and that the mere existence of records is insufficient to 

provide the City with actual knowledge. Furthermore, the City argued that Orozco failed 

to meet his initial burden to show lack of prejudice, and that he had no reasonable excuse 

for the late filing because his false arrest and malicious prosecution claims did not accrue 

until he was released from detention and the prosecution terminated. 
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Supreme Court granted the petition in relevant part,2 and the Appellate Division 

affirmed (Matter of Orozco v City of New York, 200 AD3d 559 [1st Dept 2021]), reasoning 

that the City acquired actual knowledge due to “the fact” that its officers “participated and 

were directly involved in” the conduct giving rise to the claims and “are in possession of 

records and documents relating to the incident” (id. at 560). The court concluded that the 

City’s “actual knowledge may be presumed by the very nature of the action and the 

allegations” (id. at 562). In light of the City’s actual knowledge, Orozco made an initial 

showing that the City would not be prejudiced, and the City made no particularized 

showing of prejudice in opposition (see id. at 563). Orozco’s excuse, though “debatable,” 

was “sufficient under the circumstances” (id.). One Justice dissented on the ground that 

Orozco had submitted no evidence in support of his petition (see id. at 564-566). 

We granted the City leave to appeal (39 NY3d 903 [2022]). 

Matter of Jaime v City of New York 

On May 6, 2021, petitioner Luis Jaime filed a petition attaching five proposed 

notices of claim, each relating to a different date between June 21, 2019, and October 8, 

2

 Supreme Court granted the petition only with respect to the false arrest and malicious 

prosecution claims. Those claims were timely because they accrued on December 24, 2018, 

the date Orozco was released from jail (see Britt v Legal Aid Socy., 95 NY2d 443, 448 

[2000]; McQueen v City of New York, 209 AD3d 469, 470 [1st Dept 2022]), and thus the 

limitations period of one year and 90 days prescribed in General Municipal Law § 50-i (1) 

had not expired before March 20, 2020, the date the governor issued an executive order 

containing a provision that tolled all limitations periods due to the COVID-19 pandemic 

(see 9 NYCRR 8.202.8). That provision that remained in effect in July 2020 when Orozco 

filed his late notice of claim (see 9 NYCRR 8.202.72 [lifting the toll as of November 4, 

2020]). Supreme Court denied the petition with respect to the remaining claims, which 

were time-barred because they had earlier accrual dates. 
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2020, while Jaime was detained at Riker’s Island. Although each notice alleged a separate 

incident, the allegations in the notices used nearly identical language with little variation. 

In the first notice, Jaime alleged that, on or about June 21, 2019, at approximately 3:00 

p.m., he was attacked by correction officers, including five officers identified by title and 

surname, “and/or inmates,” who struck him about the body, head, and face. Prior to the 

attack, he allegedly informed Department of Correction (DOC) employees that he was in 

“imminent danger” of attack by “officers and/or other inmates,” and that his safety would 

be in jeopardy if not placed in protective custody, but the employees allegedly responded 

with “deliberate indifference” and were not at their posts at the time of attack. Jaime further 

alleged that, in the aftermath of the attack, he sought and received medical attention in the 

infirmary for injuries, including a fractured arm. The allegations in the remaining notices 

differ only in the dates and times and the injuries sustained, except for the fourth notice, 

which also names a different set of officers and alleges a different manner of attack. 

Jaime, who was represented by the same attorney as Orozco, raised essentially the 

same arguments as Orozco, except that Jaime’s claimed reasonable excuse for the late 

filing was his continued detention, difficulty securing legal representation while in jail, and 

the effects of the COVID-19 pandemic. Like Orozco, Jaime attached his proposed notices 

of claim to his petition but did not submit an affidavit or other evidence with his petition. 

In opposition, the City argued that Jaime failed to prove that the City had actual 

knowledge because he submitted no evidence and, moreover, the involvement of its 

employees does not establish that the City had actual knowledge. The City further argued 

that, because Jaime failed to prove actual knowledge, he failed to meet his initial burden to 
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show a lack of prejudice. The City did not address whether Jaime had a reasonable excuse 

for his delay. 

Jaime thereafter submitted documents, including copies of grievances that he filed 

while jailed at Riker’s Island, but none of those grievances or any of the other documents 

relate to the incidents alleged in the notices of claim. The significance of the documents to 

Jaime’s claims is unclear, and he has not provided an explanation. 

Supreme Court granted the petition, and the Appellate Division affirmed (Matter of 

Jaime v City of New York, 205 AD3d 544 [1st Dept 2022]), concluding that the City had 

actual knowledge due to “the fact that the officers who allegedly assaulted petitioner or 

witnessed the incidents would, as respondent’s employees, have had immediate knowledge 

of the events giving rise to this dispute” (id., citing Orozco, 200 AD3d at 560). 

We granted the City leave to appeal (39 NY3d 903 [2022]). 

II. 

“[W]hen the State of New York waived its sovereign immunity in 1929, its 

subdivisions, including the City, also lost their protection from suit” (Campbell v City of 

New York, 4 NY3d 200, 205 [2005]). “In recognition of this loss of sovereign immunity, 

the legislature has created certain protections for municipalities in General Municipal Law 

article 4 that do not apply to private tort defendants” (Colon v Martin, 35 NY3d 75, 82 

[2020, Fahey, J., concurring], citing Bender v New York City Health & Hosps. Corp., 38 

NY2d 662, 667 [1976]). As part of these protections, a litigant generally may not maintain 

a tort claim against a municipality unless the litigant served upon the municipality a notice 

of claim within 90 days of the claim’s accrual (see General Municipal Law [GML] §§ 50-
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i [1]; 50-e [1]). The purpose of the notice of claim is to alert the municipality to the 

existence of the claim so that it can promptly investigate and preserve any relevant evidence 

before the passage of time renders such evidence unavailable or lessens its probative value 

(see Matter of Beary v City of Rye, 44 NY2d 398, 412 [1978]; Siegel & Connors, NY Prac 

§ 32 at 43 [6th ed 2018]). In furtherance of that purpose, the service of a notice of claim 

triggers the municipality’s right to compel oral and physical examinations of a claimant 

before an action is commenced—a unique discovery tool unavailable to the typical tort 

defendant (see GML § 50-h; Colon, 35 NY3d at 83). 

A claimant’s failure to file a timely notice of claim is not necessarily fatal. Courts 

have broad discretion to extend the 90-day time limitation “in exceptional cases” upon 

consideration of all relevant factors, provided the statute of limitations of one year and 90 

days has not already expired (Beary, 44 NY2d at 412; see GML § 50-e [5]). In determining 

whether to grant or deny leave to serve a late notice of claim, the court must consider “in 

particular” whether the municipality “acquired actual knowledge of the essential facts 

constituting the claim within [90 days of the claim’s accrual] or within a reasonable time 

thereafter” (GML § 50-e [5]; see Matter of Newcomb v Middle Country Cent. Sch. Dist., 

28 NY3d 455, 461 [2016]). Courts are to place “great weight” on this factor (Beary, 44 

NY2d at 412), which the party seeking leave has the burden of establishing through the 

submission of nonspeculative evidence (see Washington v City of New York, 72 NY2d 881, 

883 [1988]; Dalton v Akron Cent. Schools, 107 AD3d 1517, 1519 [4th Dept 2013], affd 22 

NY3d 1000 [2013]). 
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Aside from nonexclusive references to a municipality’s “attorney or its insurance 

carrier,” the statute does not designate precisely whose knowledge is imputable to the 

municipality (GML § 50-e [5]). But courts should not assume that every municipal 

employee’s knowledge of essential facts is necessarily imputed to the municipality. 

Allowing imputation in every case would undermine the purpose of the notice of claim 

requirement because not every employee’s knowledge will necessarily afford the 

municipality an opportunity to commence a prompt investigation. Generally, knowledge 

of essential facts as to time and place by an actor in a position to investigate will suffice 

(see Rosenbaum v City of New York, 8 NY3d 1, 11 [2006]). Whether a particular 

employee’s actual knowledge is imputable to the municipality involves a fact-specific 

inquiry committed to the sound discretion of the trial court, whose determination should 

not be disturbed on appeal so long as it is supported by facts in the record (see Dalton, 107 

AD3d at 1518-1519). 

While the contents of records in the municipality’s possession may sometimes be 

sufficient to demonstrate that a municipality acquired actual knowledge of the essential 

facts constituting the claim within a reasonable time, “mere possession or creation of . . . 

records does not ipso facto establish . . . ‘actual knowledge’ ” (Wally G. v New York City 

Health & Hosps. Corp. [Metro. Hosp.], 27 NY3d 672, 677 [2016] [“medical records must 

‘evince that the medical staff, by its acts or omissions, inflicted an injury on plaintiff’ in 

order for the medical provider to have actual knowledge of the essential facts” (internal 

brackets omitted)]; see Parker v City of New York, 206 AD3d 936, 938 [2d Dept 2022] 

[“Unsubstantiated and conclusory allegations that the municipality acquired timely actual 
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knowledge of the essential facts constituting the claim through the contents of reports and 

other documentation are insufficient”]). 

In addition to actual knowledge, the courts must consider “all other relevant facts 

and circumstances” (GML § 50-e [5]), and “the presence or absence of any one factor is 

not determinative” (Matter of Morris v County of Suffolk, 88 AD2d 956, 957 [2d Dept 

1982], affd 58 NY2d 767 [1982]). One oft-cited factor is whether the municipality is 

substantially prejudiced by service of the late notice of claim (see GML § 50-e [5]). Under 

the burden-shifting framework established in Newcomb, the petitioner has the initial burden 

to present “some evidence or plausible argument that supports a finding of no substantial 

prejudice” (28 NY3d at 466) and, if such a showing is made, the burden shifts to the 

municipality “to rebut that showing with particularized evidence” (id. at 467). 

Courts also commonly consider whether the petitioner had a reasonable excuse for 

failing to serve a timely notice of claim. While the statute does not explicitly provide for 

the consideration of that factor, the statute is nonexhaustive and this factor has firmly taken 

root in the case law (see e.g. id. at 463; Matter of Simpson v City of New York, 222 AD3d 

986, 986 [2d Dept 2023]; Arnold v Town of Camillus, 222 AD3d 1372, 1376 [4th Dept 

2023]; Matter of Benavides v New York City Health & Hosps. Corp., 220 AD3d 458, 458 

[1st Dept 2023]; Matter of Doe v Elmira City Sch. Dist., 209 AD3d 1187, 1187 [3d Dept 

2022]; Dalton, 107 AD3d at 1518). 

Where, as here, there is no action already pending, a claimant must seek leave to 

serve a late notice of claim by bringing a special proceeding against the municipality 

pursuant to CPLR article 4 (see Matter of Jordan v City of New York, 38 AD3d 336, 338 n 
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2 [1st Dept 2007]; Matter of Guarneri v Town of Oyster Bay, 224 AD2d 695, 695 [2d Dept 

1996]; NY Prac § 32 at 47 & n 51). The burden of production is on the petitioner in a 

special proceeding (see CPLR 409 [a]), and the court applies settled summary judgment 

standards (see Matter of Bank of N.Y. Mellon, 202 AD3d 465, 467 [1st Dept 2022]), under 

which the party seeking relief must establish entitlement to judgment as a matter of law by 

submitting admissible evidence (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 

1065, 1067 [1979]). That said, if papers “necessary to consideration of the questions 

involved” are in the possession of the municipality, the petitioner may demand the papers 

produced by serving a notice with the petition (CPLR 409 [a]). 

Ultimately, while the decision to grant or deny leave to file a late notice of claim is 

committed to the court’s “broad discretion,” its determinations “must be supported by 

record evidence” (Newcomb, 28 NY3d at 465). 

III. 

Matter of Orozco v City of New York 

Orozco’s allegation that NYPD officers and the District Attorney’s Office 

participated in his arrest and prosecution does not establish that the City acquired actual 

knowledge of the essential facts constituting his false arrest and malicious prosecution 

claims (see GML § 50-e [5]). As emphasized by the dissenting Justice at the Appellate 

Division, Orozco offered no evidence establishing the City’s actual knowledge (see 

Orozco, 200 AD3d at 564-565 [Moulton, J., dissenting]). Although a “ ‘verified pleading’ 

may be utilized as an affidavit whenever the latter is required” (CPLR 105 [u]; see Sanchez 

v National R.R. Passenger Corp., 21 NY3d 890, 891 [2013]), the verified pleading has 
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evidentiary value only if the verifier has personal knowledge of the facts (see Juseinoski v 

Board of Educ. of City of N.Y., 15 AD3d 353, 356 [2d Dept 2005] [“a pleading verified by 

an attorney pursuant to CPLR 3020 (d) (3), and not by someone with personal knowledge 

of the facts, is insufficient to establish (a claim’s) merits”]; see also Zuckerman v City of 

New York, 49 NY2d 557, 563 [1980] [“the bare affirmation of (an) attorney who 

demonstrated no personal knowledge of the manner in which the accident occurred . . . is 

without evidentiary value and thus unavailing”]). 

Without any competent evidence, the trial court was unable to undertake a factspecific inquiry into whether the City acquired actual knowledge through any of its 

employees.3 If the alleged fabrication were the work of a single rogue officer in a 

nonsupervisory role, for example, it is doubtful that the officer would have referred his 

own illicit conduct for an investigation. The evidence of actual knowledge need not be 

exhaustive, provided the petitioner meets the applicable evidentiary burden. Orozco might 

have submitted his own affidavit, copies of papers that he filed in the underlying criminal 

proceeding, decisions of the criminal court, or other relevant evidence. However, Orozco’s 

mere allegation that NYPD officers participated in his arrest and prosecution does not 

constitute facts or evidence, and thus does not satisfy his burden of establishing that the 

City acquired actual knowledge of the essential facts constituting the claims. 

3

 Orozco cannot rely on the actual knowledge of the employees of the District Attorney’s 

Office because the City and the District Attorney’s Office “are separate entities” (Brown v 

City of New York, 60 NY2d 897, 898 [1983]). 
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If we were to hold that a municipal employee’s alleged participation in an 

intentional tort necessarily provided the municipality with actual knowledge, our holding 

would create a de facto exemption to the notice of claim requirement for claims of battery, 

false arrest, and malicious prosecution, among others. This the legislature plainly did not 

intend because General Municipal Law § 50-e (8) identifies the kinds of tort claims that 

are categorically exempt from the notice of claim requirements, e.g., those arising out of 

sex crimes against children (see GML § 50-e [8] [b]). Claims of false arrest and malicious 

prosecution are not exempt from the notice of claim requirement. 

Furthermore, the alleged existence of records does not suffice to establish actual 

knowledge (see Washington, 72 NY2d at 883). Orozco’s failure to submit evidence of the 

contents of the alleged records is fatal to his argument that the City acquired actual 

knowledge from the existence of such records. There is no suggestion that Orozco’s 

attorney attempted to obtain the records and was refused, something that easily could have 

been included in an attorney affirmation. Nor did Orozco seek to compel the City to 

produce any papers necessary to the determination of his petition (see CPLR 409 [a]). 

Insofar as Orozco argued that the City would not be substantially prejudiced by the 

late filing because it acquired timely actual knowledge, Orozco’s failure to establish actual 

knowledge is fatal. Orozco’s further argument—that the City would not be substantially 

prejudiced because it will have to expend resources to defend against his 42 USC § 1983 

claims—misapprehends the purpose served by the notice of claim requirement. As 

discussed above, the purpose is to afford the municipality the opportunity to investigate the 

claims and preserve evidence (see Beary, 44 NY2d at 412), not simply to shield 
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municipalities from litigation costs. Moreover, this argument understates the advantage of 

facing only a section 1983 claim that can be defended on qualified immunity grounds (see 

Savino v City of New York, 331 F3d 63, 66 [2d Cir 2003]), as opposed to facing that claim 

plus additional state law claims. 

Orozco also failed to provide a reasonable excuse for his late notice. The need to 

defend against the criminal charges does not provide him with a reasonable excuse because 

Orozco’s false arrest and malicious prosecution claims did not accrue until the date he was 

released from custody (see n 2, supra), at which time there were no longer any criminal 

charges against him. Nor does the COVID-19 pandemic provide a reasonable excuse 

because Orozco’s claims were to expire only days after the pandemic struck New York 

State (see id.). If anything, the pandemic benefited him by giving rise to the executive 

orders that tolled his claims. Orozco’s remaining excuses were offered only in conclusory 

and perfunctory fashion (see Ward v New York City Health & Hosps. Corp., 82 AD3d 471, 

472 [1st Dept 2011]; Matter of Oliver v City of New York, 76 AD3d 1017, 1018 [2d Dept 

2010]). 

Because the court’s determination was not supported by the record, the court abused 

its discretion in granting Orozco’s petition (see Newcomb, 28 NY3d at 460). 

Matter of Jaime v City of New York 

Supreme Court likewise abused its discretion in granting Jaime’s petition. Unlike 

Orozco, Jaime appears to have submitted some evidence—copies of grievances that he 

filed with DOC while detained at Riker’s Island. However, those grievances serve only to 

undermine his claim that the City had actual knowledge. The grievances in the record 
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demonstrate that Jaime was familiar with the grievance procedure and repeatedly availed 

himself of it, and also that he knew how to obtain copies of the grievances he filed. Yet the 

absence of any grievances bearing on the incidents described in the late notices of claim 

suggests that he never filed such a grievance. If such a grievance were in the record, surely 

it would comprise at least some evidence that the City had actual knowledge. 

The City conceded at oral argument that an incarcerated person might not file a 

grievance concerning a violent attack by a correction officer for fear of reprisal, a fear that 

may constitute a reasonable excuse for late service of a notice of claim. It would, however, 

be entirely speculative for us to consider that possibility here given the absence of any 

relevant evidence. Were Jaime in fact operating under such a fear, he could have submitted 

an affidavit attesting to the fact. That affidavit would have constituted evidence supporting 

an arguably reasonable excuse, which might provide at least some support for a court’s 

discretionary determination to allow late service. 

Neither the allegation that Jaime sustained injuries in the attacks for which he sought 

medical attention in the infirmary, nor the allegation that the DOC created or maintained 

records relating to those injuries, establishes that the City acquired actual knowledge of the 

essential facts constituting the claim (see Wally G., 27 NY3d at 677). While medical 

personnel in the infirmary may be expected to report injuries of inmates that were allegedly 

caused by correction officers or other employees, Jaime provides no evidence, even in the 

form of an affidavit, that he told the infirmary personnel his injuries were caused by 

correction officers. Absent such a linkage, there would be no reason for the infirmary 
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personnel to file any report. Moreover, as with Orozco, there is no indication that Jaime 

unsuccessfully sought the production of these alleged records and documents from the City. 

Jaime thus failed to meet his burden of establishing actual knowledge and, for the 

same reasons as Orozco, failed to meet his initial burden on the substantial prejudice factor. 

Because the court’s determination was not supported by the record, the court abused its 

discretion in granting Jaime’s petition (see Newcomb, 28 NY3d at 460). 

IV. 

The trial courts’ abuse of discretion requires reversal. Although remittal to those 

courts is generally the preferred disposition given the purely discretionary nature of a 

determination whether to grant an extension to file a notice of claim (see Newcomb, 28 

NY3d at 465, 468), we conclude that remittal would serve no purpose in these cases. 

Orozco failed to establish any of the factors on which he relied and, although Jaime did 

offer an unsubstantiated reasonable excuse to which the City preserved no challenge (see

Jaime, 205 AD3d at 544-545), under the particular facts of this case, Jaime’s excuse, even 

if credited, would not by itself support a discretionary extension of time in which to serve 

a late notice of claim. 

Accordingly, in each matter, the order of the Appellate Division should be reversed, 

with costs, and the petition to file a late notice of claim denied. 
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RIVERA, J. (dissenting in part and concurring in part): 

 The common question presented in these joint appeals is whether the Appellate 

Division abused its discretion in affirming Supreme Court’s grant of the respective 

petitions to file a late notice of claim under General Municipal Law 50-e (5). In each case, 
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the Appellate Division concluded that the immediate knowledge of the public employees 

who perpetrated the allegedly tortious acts is automatically imputed to the municipality, 

thus establishing its actual knowledge of the essential facts constituting the claim within a 

reasonable time after the claim accrued (Matter of Orozco v City of New York, 200 AD3d 

559, 560-562 [1st Dept 2021]; Matter of Jaime v City of New York, 205 AD3d 522, 544 

[1st Dept 2022]). As the majority states, “[w]hether a particular employee’s actual 

knowledge is imputable to the municipality involves a fact-specific inquiry committed to 

the sound discretion of the trial court” (majority op at 8). Therefore, like the majority, I 

reject the Appellate Division’s per se rule because it supplants the court’s discretion. 

The question remains whether application of the majority’s rule warrants reversal 

in either or both appeals. To the extent the Court’s analysis here may be understood as 

mandating denial of a late notice petition where the record lacks evidence to suggest the 

municipality had “actual knowledge of the essential facts constituting the claim,” such a 

reading is contrary to the plain statutory text and our case law, which make clear that no 

factor is dispositive. However, I concur in the majority’s conclusion that it was an abuse 

of discretion to grant the petition in Orozco for the reasons stated. But because the petition 

in Jaime provides sufficient support for actual knowledge, I would affirm the Appellate 

Division as to that appeal. 

* * * 

Section 50-e (5) of the General Municipal Law (GML) authorizes a court, “in its 

discretion, [to] extend the time to serve a notice of claim” upon a prospective municipal 

defendant of a tort action. The court shall consider whether the municipality “acquired 
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actual knowledge of the essential facts constituting the claim within [90 days of accrual] 

or within a reasonable time thereafter” and “shall also consider all other relevant facts and 

circumstances, including “a nonexhaustive list of factors that the court should weigh,” such 

as whether service of a late notice “substantially prejudiced the public corporation in 

maintaining its defense on the merits” (Williams v Nassau County Med. Ctr., 6 NY3d 531, 

535 n 1, 539 [2006], quoting GML § 50-e [5]). “Since the statutory notice requirement is 

not intended to operate as a device to frustrate the rights of individuals with legitimate 

claims, and because of its remedial nature, it should be liberally construed” (Ramos v New 

York City Hous. Auth., 162 AD3d 884, 885 [2d Dept 2018], citing Matter of Porcaro v City 

of New York, 20 AD3d 357, 358 [1st Dept 2005] [internal quotation marks omitted]; see 

also People v Brown, 25 NY3d 247, 251 [2015] [“remedial statutes . . . should be 

interpreted broadly to accomplish their goals”]). “Because the decision to grant or deny an 

application for an extension under section 50-e (5) is ‘purely a discretionary one’, our 

review is limited to whether the Appellate Division abused its discretion in making such a 

determination” (Wally G. v New York City Health & Hosp. Corp. [Metro. Hosp.], 27 NY3d 

672, 675 [2016] [internal citations omitted]). A court abuses its discretion under GML 50-

e if it acts beyond “the perimeters of reason” (Williams, 6 NY3d at 539, quoting Matter of 

Murray v City of New York, 30 NY2d 113, 119 [1972]). 

Petitioner Jaime alleged that during his incarceration at Rikers Island he warned 

numerous Department of Corrections officers that he was “in imminent danger of attack” 

by various other officers and inmates and that his safety would be “in serious jeopardy” 

unless he were placed in protective custody. He further alleged that his requests were 
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ignored and he was subsequently attacked by several identified officers and unidentified 

inmates five times between June 2019 and October 2020. The petition included copies of 

several administrative grievances he filed while incarcerated, although only one referred 

to an “altercation.” Crucially, he alleged that after each of the attacks, he received medical 

attention at the North Infirmary Command (NIC). The NIC is based on Rikers and provides 

medical services to inmates. Petitioner’s injuries surely would have been documented and 

should have been investigated, especially given his advance warning of impending danger, 

if for no other reason than that a failure to do so would expose Rikers officials to liability. 

A prisoner who goes to the infirmary with significant injuries from a physical assault 

should prompt an inference of negligence because corrections officers have a responsibility 

to keep prisoners safe (Sanchez v State of New York, 99 NY2d 247, 252 [2002] [“Having 

assumed physical custody of inmates, who cannot protect and defend themselves in the 

same way as those at liberty can, the State owes a duty of care to safeguard inmates, even 

from (reasonably foreseeable) attacks by fellow inmates”]). 

 The majority misinterprets Wally G. (27 NY3d 672), which did not foreclose the 

possibility that an allegation that the City possesses records documenting a petitioner’s 

injuries could “establish[] that the City acquired actual knowledge of the essential facts 

constituting the claim” (majority op at 14). That case involved negligence and medical 

malpractice claims against government-employed medical professionals for birth-related 

injuries. The Court held that expert affidavits offered by the petitioner simply posited that 

the City employees “could have engaged in alternative courses of treatment” that would 

have produced different results, and that “mere assertions that a different course of 
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treatment” could have been followed do not address whether the City had actual knowledge 

of the essential facts necessary to properly defend itself (27 NY3d at 676-677). In other 

words, the records in the City’s possession would not have established that City-employed 

medical providers caused any injury to the petitioner. 

But the prison infirmary records here are plainly distinguishable because an injury 

to an inmate in and of itself places prison officials on notice of a potential tort claim. 

Indeed, Rikers has a particularly appalling record of inmate injuries. Use of force rates 

have doubled since the federal monitor began overseeing conditions on Rikers Island, and 

incidents resulting in “serious injuries have tripled since 2016” (Sam McCann, Amid 

Another Report of Rampant Abuse on Rikers, It’s Time to Hold City Jails Accountable, 

Vera Institute [Apr. 27, 2023], available at https://www.vera.org/news/amid-anotherreport-of-rampant-abuse-on-rikers-its-time-to-hold-city-jails-accountable [accessed 

March 2, 2024]; see also Serious Injury Report in NYC Jails, New York City Board of 

Correction [January 2019]). The numbers are difficult to verify, however, because of a 

“systematic lack of accountability” for corrections officers, who have been shown to cover 

up incidents of violence (id., citing Joshua Needelman, 3 Rikers Officers Charged With 

Covering Up Attack on a Detainee, NY Times [Jan. 17, 2023], available at 

https://www.nytimes.com/2023/01/17/nyregion/rikers-officers-inmate-attack-coverup.html [accessed March 2, 2024]). Thus, the fact of an injury treated at the NIC must have 

sent up red flags to the Rikers administration. 

Petitioner alleged that his post-assault treatment at the Rikers infirmary generated 

medical reports regarding his injuries, which are in the City’s possession. He also 
 - 6 - Nos. 15 & 16 

- 6 - 

specifically identified the officers that he alleged had direct personal knowledge of the facts 

underlying the incident. This evidence supports a conclusion that the City had actual 

knowledge of the facts constituting petitioner’s tort claim. It also supports the conclusion 

that “the delay in serving the notice of claim” did not “substantially prejudice[ ] the [City] 

in maintaining its defense on the merits” (GML § 50-e [5]). As a final point, the record 

belies the majority’s assertion that it “would be entirely speculative” to consider that any 

delay in filing a timely notice was due to Jaime’s fear of retaliation. Jaime approached 

officials to seek protection because he feared an attack like the one that caused his injury. 

It is not speculation but rather acknowledgement of the realities of incarceration to infer 

that he feared retribution if he reported that officers and inmates attacked him. 

The majority’s primary disagreement with this reasoning is that Jaime’s claims are 

mere allegations, rather than record evidence (see majority op at 14-15). In other words, 

while infirmary staff’s knowledge of Jaime’s injuries or medical documentation of the 

same might be sufficient to establish actual knowledge, the knowledge of infirmary staff 

ought to have been asserted in an affidavit or the records ought to have been sought through 

CPLR 409 (a). These formalities are not explicitly required by GML § 50-e (5) and I 

believe it is within the discretion of the trial court not to require them. Here, under the 

majority’s analysis, all that may have been missing was a declaration from Jaime that he 

told the infirmary staff that his injuries were caused by a corrections officer. 

On this record, the Appellate Division did not abuse its discretion in affirming 

Supreme Court’s assessment of the factors for extending the time for Jaime to file a notice 

of claim. I dissent. 
 - 7 - Nos. 15 & 16 

- 7 - 

For No. 15: Order reversed, with costs, and petition to file a late notice of claim denied. 

Opinion by Judge Troutman. Judges Garcia, Singas, Cannataro and Halligan concur. Judge 

Rivera dissents in an opinion, in which Chief Judge Wilson concurs. 

For No. 16: Order reversed, with costs, and petition to file a late notice of claim denied. 

Opinion by Judge Troutman. Chief Judge Wilson and Judges Garcia, Singas, Cannataro 

and Halligan concur. Judge Rivera concurs in result in an opinion. 

Decided March 21, 2024