Toribio v. City of New York

2024 NY Slip Op 33720(U)

• Court: New York Supreme Court, New York County
• Decided: October 21, 2024
• Docket: Index No. 158015/2024
• Status: Unpublished

Opinion

Toribio v City of New York 2024 NY Slip Op 33720(U) October 21, 2024 Supreme Court, New York County Docket Number: Index No. 158015/2024 Judge: Hasa A. Kingo 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. INDEX NO. 158015/2024 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 10/21/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. HASA A. KINGO PART 05M Justice ----------------------------------------------------------------- ----------------X INDEX NO. 158015/2024 JOSE A TORIBIO, 08/30/2024, Plaintiff, MOTION DATE 08/30/2024

- V - MOTION SEQ. NO. _ _0_0_1_0_0_1__

THE CITY OF NEW YORK, THE CITY OF NEW YORK FIRE DEPARTMENT DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2 were read on this motion for LEAVE TO FILE

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2 were read on this motion for MISCELLANEOUS

Petitioner, Jose A. Toribio ("Petitioner"), moves this court for an order granting him leave

to serve a late notice of claim upon Respondents the City of New York and the New York City

Fire Department ("Respondents") nunc pro tune, deeming such service timely and complete. The

petition is unopposed. Upon review of the papers submitted, the relevant case law, and applicable

statutory provisions, the court grants the petition as detailed below.

BACKGROUND

This claim arises from a motor vehicle accident that occurred on September 1, 2023, at the

intersection of West 178th Street and Amsterdam Avenue in New York City. Petitioner was

driving northbound and intended to tum right onto the entrance ramp for the Harlem River Drive.

A fire truck owned by the Respondents and operated by Darren Robinson ("Robinson") was also

traveling northbound. The vehicles collided when both attempted to enter the ramp, resulting in

damage to Petitioner's vehicle. 158015/2024 TORIBIO, JOSE A vs. THE CITY OF NEW YORK ET AL Page 1 of4 Motion No. 001 001

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Petitioner filed this motion seeking leave to serve a late notice of claim after the statutory 90-day

period prescribed by General Municipal Law § 50-e had expired.

DISCUSSION

Under General Municipal Law § 50-e(5), a court has discretion to permit late service of a

notice of claim upon consideration of several factors, including: 1.) whether the petitioner has a

reasonable excuse for failing to serve a timely notice; 2.) whether the municipality had actual

knowledge of the essential facts within the statutory period or within a reasonable time thereafter;

and 3.) whether the delay prejudiced the municipality's ability to defend itself against the claim

(see Matter ofNewcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455,460 [2016]). The court

must balance these factors, and no single factor is determinative. Importantly, the presence or

absence of a reasonable excuse is not dispositive if the other factors favor the petitioner.

I. Reasonable Excuse

Here, although Petitioner has not provided a specific excuse for the failure to serve the

notice of claim within the statutory period, this factor is not dispositive under well-established

precedent. Courts in New York have consistently held that the absence of a reasonable excuse

alone is insufficient to deny a motion for leave to serve a late notice of claim where other factors

weigh in favor of the petitioner (see Weiss v. City of New York, 237 AD2d 212 [1st Dept 1997]).

II. Actual Knowledge

Respondents, through their employee Robinson, were directly involved in the accident, as

the fire truck he was operating collided with Petitioner's vehicle. As the operator of the vehicle,

Robinson was aware of the material facts giving rise to the claim. Furthermore, the incident was

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documented in a police report, attached as Exhibit 1 to the petition. This constitutes actual

knowledge of the essential facts, as articulated in Matter ofNewcomb v. Middle Country Sch. Dist.,

28 NY3d 455 (2016). Given Respondents' involvement, they were on notice of a potential claim

within the statutory period.

III. Prejudice to the Municipality

The burden of proving substantial prejudice lies with Respondents (see Matter of

Newcomb, supra). Here, there is no evidence to suggest that Respondents would suffer prejudice

from the delay in serving the notice of claim. The accident involved a city-owned vehicle operated

by a city employee, and incident reports were generated in the ordinary course of municipal

business. Moreover, Respondents have not asserted, either in opposition papers or otherwise, that

they would be prejudiced by the late service. Case law supports the conclusion that a delay in

serving the notice of claim does not automatically result in prejudice where the municipality had

actual knowledge of the facts (see Renelique v. New York City Haus. Auth., 72 AD3d 595 [1st Dept

2010]).

Based on the foregoing, the court finds that Respondents had timely knowledge of the

essential facts, and Petitioner has made a sufficient showing that the delay will not prejudice

Respondents.

Accordingly, it is hereby

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

granted; and it is further

ORDERED and ADJUDGED that Petitioner's notice of claim is deemed timely served,

nunc pro tune.

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This constitutes the decision, order, and judgment of the court.

10/21/2024 DATE HASAA. KIN

~ ~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

□ DENIED □ GRANTED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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