Matter of Guevara v Village of Hempstead Police Dept., 2024 NY Slip Op 02914 [227 AD3d 1075]

May 29, 2024

Appellate Division, Second Department

[*1]

In the Matter of Luis Guevara, Appellant,

v

Village of Hempstead Police Department et al., Respondents.

Nichols & Cane, LLP, Syosset, NY (Robert M. Horn of counsel), for appellant.

Keisha N. Marshall, Village Attorney, Hempstead, NY, for respondents.

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered March 23, 2022. The order denied the petition and, in effect, dismissed the proceeding.

Ordered that the order is affirmed, with costs.

The petitioner commenced this proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim against the Village of Hempstead Police Department (hereinafter the police) and the Incorporated Village of Hempstead (hereinafter together the respondents). The Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.

The determination of an application for leave to serve a late notice of claim is left to the sound discretion of the court ( see Matter of Jaffier v City of New York , 148 AD3d 1021 , 1022 [2017]). Among the factors to be considered by a court in determining whether leave to serve a late notice of claim should be granted are: (1) whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim; (2) whether 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; and (3) whether the delay would substantially prejudice the public corporation in maintaining its defense ( see General Municipal Law § 50-e [5]; Matter of McGrue v City of New York , 195 AD3d 932 [2021]). Neither the presence nor absence of any one factor is determinative ( see Matter of McVea v County of Orange , 186 AD3d 1221 , 1222 [2020]). The absence of a reasonable excuse is not necessarily fatal ( see Matter of McGrue v City of New York , 195 AD3d at 932; Jordan v City of New York , 41 AD3d 658 , 659 [2007]). However, whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim is of great importance ( see Matter of Brown v City of New York , 218 AD3d 466 , 467-468 [2023]; Matter of McVea v County of Orange , 186 AD3d at 1222).

Here, the Supreme Court properly determined that the petitioner failed to demonstrate that the respondents acquired timely actual knowledge of the essential facts constituting the claim. The petitioner relies upon an incident report prepared by the police. In order for this report to have provided actual knowledge of the essential facts, one must have been able to readily infer from the report that a potentially actionable wrong had been committed by the respondents ( see Matter of Galicia v City of New York , 175 AD3d 681 , 683 [2019]; Matter of Fethallah v New York City Police Dept. , [*2] 150 AD3d 998, 1000 [2017]). The report reflects that the police responded to a building fire and that “civilians used” the petitioner’s vehicle “to escape their apartments,” thereby “causing damage” to the petitioner’s vehicle. The report makes no connection between the damage to the petitioner’s property and any potentially actionable wrong by the respondents ( see Matter of Galicia v City of New York , 175 AD3d at 683). The report did not provide the respondents with actual knowledge of the facts underlying the claim that the petitioner now asserts ( see id. ; see also C.A. v Academy Charter Sch. , 216 AD3d 1075 , 1077 [2023]), namely, that the police “commandeered” the petitioner’s vehicle for use in the evacuation of the building. Moreover, contrary to the petitioner’s contention, the direct involvement of the police in the alleged commandeering of the petitioner’s vehicle did not, without more, establish that the respondents had actual knowledge of the facts constituting the claim ( see Matter of Galicia v City of New York , 175 AD3d at 682-683; Matter of Fethallah v New York City Police Dept. , 150 AD3d at 1000).

The petitioner also failed to provide a reasonable excuse for the failure to timely comply with the provisions of General Municipal Law § 50-e ( see Matter of Quinones v City of New York , 160 AD3d 874 , 876 [2018]; Matter of Guminiak v City of Mount Vernon Indus. Dev. Agency , 68 AD3d 1111 [2009]).

Finally, the petitioner failed to meet his burden of presenting some evidence or plausible argument that supports a finding that the delay would not substantially prejudice the respondents in maintaining their defense on the merits ( see Matter of Newcomb v Middle Country Cent. Sch. Dist. , 28 NY3d 455 , 466 [2016]; Matter of Sumi v Village of Stewart Manor , 219 AD3d 490 , 492 [2023]; Matter of Robinson v City of New York , 208 AD3d 587 , 588-589 [2022]; cf. Matter of McGrue v City of New York , 195 AD3d 932 [2021]).

Accordingly, the Supreme Court providently exercised its discretion in denying the petition and, in effect, dismissing the proceeding. Connolly, J.P., Chambers, Genovesi and Love, JJ., concur..