This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
When a Notice of Claim deadline is missed, a court considers whether the public body learned the essential facts in time, whether there is a reasonable excuse, and whether the delay hurt its defense. Here, the Second Department affirmed the denial of an injured police officer’s request to serve a late Notice of Claim, holding that an accident report prepared by a different police department did not give the Village of Port Chester actual knowledge of his claim.
The case
- Court
- Appellate Division, Second Department
- Decided
- October 7, 2026
- Case
- Matter of Defonce v Village of Port Chester
- Citation
- 2026 NY Slip Op 05786
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The petitioner said that on May 3, 2023, while working for the Harrison Police Department, his motorcycle and one operated by a Village of Port Chester police officer sideswiped each other as they rode side by side on White Street in the Village of Tarrytown. On or about February 6, 2024, he served the Village of Port Chester with a late Notice of Claim, without leave of court. On July 9, 2024, he asked the Supreme Court, Westchester County, for leave to serve it late or to deem it timely. He relied on the Tarrytown Police Department’s report and on the Port Chester officer’s line-of-duty injury report and workers’ compensation forms. The court denied the petition, and he appealed.
The holding
The Second Department affirmed. It held that “[t]he police report, prepared by the Tarrytown Police Department, cannot be imputed to the Village of Port Chester” (2026 NY Slip Op 05786, *2). The Port Chester officer’s reports and forms “did not mention the petitioner or any injuries he allegedly sustained in the accident” (id.). His excuse also failed: “The excuse offered by the petitioner, that he did not readily appreciate the severity of his injuries, was unacceptable without supporting medical evidence explaining why the extent of his injuries and disability took so long to become apparent” (id.). Nor did he show that the delay would not substantially prejudice the Village.
What changed
Nothing new: this applies settled law, including the Court of Appeals’ decision in Matter of Newcomb v Middle Country Cent. Sch. Dist. (28 NY3d 455).
What it means
- A claim against a village or other public body generally requires a Notice of Claim served “within 90 days after the claim arises.”
- A court may allow a late notice after weighing actual knowledge, excuse, and prejudice. The court called the public body’s actual knowledge of the essential facts “of great importance.”
- A report by a different police department could not be imputed to the Village, and a report that only describes an accident, without tying the injuries to the public body’s negligence, is not enough.
- Not appreciating how badly he was hurt was no excuse without medical evidence explaining why that took so long to become apparent.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
We note that this petitioner was a police officer hurt on the job. In our experience, people injured at work often deal with workers’ compensation first and may not realize that a claim against a different public employer has its own, much shorter deadline. This case is the other side of our Tkebuchava entry, decided by the same court one week earlier. There, a bus passenger’s timely Notice of Claim was served on the Transit Authority itself and set out the facts and a claim of negligence against it, so the authority had actual knowledge of the essential facts. Here, the accident report was prepared by a different police department, which the court held “cannot be imputed to the Village of Port Chester,” and the reports and forms of the Village’s own officer did not mention the petitioner or his injuries. We believe two lessons follow. 1. Do not wait to see how an injury develops; the 90-day clock is already running. 2. If an injury takes time to show itself, medical evidence explaining why may be needed. When a public body is involved, prompt legal advice matters.
Topics
Court: Second Department. Year: 2026. Statutes: General Municipal Law § 50-e. Result: affirmed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 7, 2026. Posted October 8, 2026.
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