When does a municipality have knowledge of "the essential facts" upon which a claim is made, and when does a municipality have "actual knowledge"? This seemingly small distinction has grave consequences for a plaintiff, and incidentally plaintiff’s attorney,
Matter of Felice v Eastport/South Manor Cent. School Dist. ,2008 NY Slip Op 00691 ,Decided on January 29, 2008 ,Appellate Division, Second Department .
"CRANE, J.P. An injured person who has failed to serve a timely notice of claim may, pursuant to General Municipal Law § 50-e(5), apply for permission to serve a late notice. Among the "facts and circumstances" a court must consider in determining an application for permission to serve a late notice of claim are the actual knowledge of the public corporation of the "essential facts constituting the claim" and the prejudice to the public corporation from a claimant’s failure to serve a timely notice of claim (General Municipal Law § 50-e). Here, we take the opportunity to clarify the standards relevant to the courts’ exercise of discretion in deciding these applications, so the outcomes are more predictable and not merely the product of judicial whimsy. More precisely, we grapple with the distinction between, on the one hand, the knowledge obtained by a public corporation [including a school district (see General Municipal Law § 50-e[a]; [*2]General Construction Law §§ 66-)] of the "essential facts constituting the claim," and, on the other, the knowledge obtained by a public corporation of facts about an accident and the resulting injury that do not amount to the essential facts constituting the claim. We also analyze the effect of this distinction in determining whether the lack of a timely notice of claim has substantially prejudiced a public corporation in its ability to defend the claim on the merits.
We have consistently held that a public corporation’s knowledge of the accident and the injury, without more, does not constitute "actual knowledge of the essential facts constituting the claim" (General Municipal Law § 50-e; see Weber v County of Suffolk, 208 AD2d 527, 528), at least where the incident and the injury do not necessarily occur only as the result of fault for which it may be liable. In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves.
Finally, a claimant seeking leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5) bears the burden of showing that the delay will not substantially prejudice the public corporation in maintaining its defense on the merits (see Jordan v City of New York, 41 AD3d 658; Matter of Dumancela v New York City Health & Hosps. Corp., 32 AD3d 515, 516; Breedon v Valentino, 19 AD3d 527, 528). It makes sense that the burden of establishing the lack of prejudice be placed on the claimant, who, after all, is seeking to excuse his or her failure to comply with the statute. Of course, when the public corporation has actual knowledge of the facts constituting the claim, it may be easier for a claimant to meet this burden (see Gibbs v City of New York, 22 AD3d 717, 719). Indeed, the Court of Appeals has recently observed that "proof that the defendant had actual knowledge is an important factor in determining whether the defendant is substantially prejudiced by such a delay" (Williams v Nassau County Med. Ctr., 6 NY3d at 539; see Jordan v City of New York, 41 AD3d 658; Matter of Vasquez v City of Newburgh, 35 AD3d 621, 623; Rechenberger v Nassau County Med. Ctr., 112 AD2d 150, 153). Thus, for example, in Jordan v City of New York, which concerned a car accident, the claimant, the driver, was able to establish that the City had actual knowledge of the essential facts constituting the claim because the passengers in his car had served timely notices of claim. A fortiori, the City was not prejudiced by his delay in serving a timely notice of claim (see Jordan v City of New York, 41 AD3d 658).