Matter of Quilli v. City of New York
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Opinion
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Bureau Thomas J.K. Smith, State Reporter
Matter of Quilli v City of New York
2026 NY Slip Op 04310
July 8, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
In the Matter of Jenny M. Berrezueta Quilli, appellant,
v
City of New York, respondent-respondent, et al., respondent.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 8, 2026
2021-02964, 2021-06685, (Index No. 704885/20)
Lara J. Genovesi, J.P.
Lillian Wan
Lourdes M. Ventura
Susan Quirk, JJ.
Panzavecchia & Associates, PLLC (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac, Kelly A. Breslauer, and Jillian Rosen], of counsel), for appellant.
Steven Banks, Corporation Counsel, New York, NY (Ian M. Sinclair, Jane L. Gordon, and Julie Steiner of counsel), for respondent-respondent.
DECISION & ORDER
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioner appeals from (1) an order of the Supreme Court, Queens County (Tracy Catapano-Fox, J.), entered April 1, 2021, and (2) an order of the same court entered August 17, 2021. The order entered April 1, 2021, denied the petition and dismissed the proceeding. The order entered August 17, 2021, denied the petitioner's motion for leave to renew and reargue the petition.
ORDERED that the order entered April 1, 2021, is affirmed; and it is further,
ORDERED that the appeal from so much of the order entered August 17, 2021, as denied that branch of the petitioner's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument (see Ahmad v New York City Dept. of Educ., 177 AD3d 834, 835); and it is further,
ORDERED that order entered August 17, 2021, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the respondent City of New York.
On October 30, 2019, the petitioner allegedly sustained personal injuries when she was struck by a vehicle operated by a nonparty driver, while crossing 55th Avenue in Queens. On March 19, 2020, the petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim upon the respondent City of New York and another party. In an order entered April 1, 2021, the Supreme Court denied the petition and dismissed the proceeding. The petitioner subsequently moved for leave to renew and reargue her petition. In an order entered August 17, 2021, the court denied the petitioner's motion. The petitioner appeals from both orders.
"Pursuant to General Municipal Law § 50-e(1)(a), a party seeking to sue a public corporation must serve a notice of claim on the prospective defendant within 90 days after the claim arises" (Matter of DeGarmo v City of New York, 237 AD3d 1092, 1093). "In determining whether to grant a petition for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider all relevant circumstances, including 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 demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits" (id. [internal quotation marks omitted]; see General Municipal Law § 50-e[5]; Lobos v City of New York, 219 AD3d 720, 721). "'While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance'" (Matter of DeGarmo v City of New York, 237 AD3d at 1093, quoting Lobos v City of New York, 219 AD3d at 721).
Here, the petitioner failed to demonstrate a reasonable excuse for the failure to timely serve a notice of claim. The petitioner annexed no medical records or other supporting evidence to her petition to support her claim that her injuries and hospitalization prevented her from complying with the 90-day deadline to serve a notice of claim (see Matter of Crowder v New York City Sch. Constr. Auth., 230 AD3d 490, 491-492; Matter of Fernandez v City of New York, 131 AD3d 532, 533). Where, as here, the record demonstrates that her injuries did not prevent her from hiring prior counsel during that time, the petitioner failed to demonstrate that she was incapacitated to such an extent that she could not have complied with the 90-day deadline (see Matter of Crowder v New York City Sch. Constr. Auth., 230 AD3d at 492; Matter of Dutra v City of New York, 224 AD3d 682, 683). Moreover, the petitioner's claim of law office failure by her former attorney does not constitute a reasonable excuse for the failure to serve a timely notice of claim and the delay in commencing this proceeding (see Matter of Sumi v Village of Stewart Manor, 219 AD3d 490, 491; Matter of Lugo v GNP Brokerage, 185 AD3d 824, 826). The attorney's affirmation annexed to the petition was not based upon personal knowledge insofar as it discussed events alleged to have occurred before counsel was retained on February 5, 2020. Accordingly, that portion of the affirmation discussing those alleged events has no evidentiary value (see Nerayoff v Khorshad, 168 AD3d 866, 867).
The petitioner further failed to demonstrate that the City had actual knowledge of the essential facts constituting the claim. "In order for a municipality to have actual knowledge of the essential facts constituting the claim, '[it] must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim'" (Lobos v City of New York, 219 AD3d at 721, quoting Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 148; see Matter of Ramos v Board of Educ. of the City of N.Y., 148 AD3d 909, 911). "'Unsubstantiated and conclusory assertions that the municipality acquired timely actual knowledge of the essential facts constituting the claim through the contents of reports and other documentation are insufficient'" (Matter of Gutierrez v City of New York, 237 AD3d 819, 820, quoting Lobos v City of New York, 219 AD3d at 721-722). Here, a police accident report was not sufficient to provide the City with actual notice of the essential facts constituting the claim as the report documented the accident with the nonparty driver and failed to connect the petitioner's injuries to any alleged negligent conduct on the part of the City.
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