Acosta v. Benepe


Petitioner asked the Court to be permitted leave to file a late notice of claim. 

Mary Acosta, the petitioner was released from her position as Urban Park Ranger on July 9, 2010.  This timely notice of claim should have been filed by October 7, 2010.  This event did not take place but, the petitioner began an Article 78 on November 5, 2010.  The petition filing did not occur until March 8, 2011. 

Petitioner sought counsel on August 16, 2010.  A letter was delivered to the Commissioner of the Department of Parks, Adriane Benepe, On September 8, 2011 Ezra Pincus-Rother responded to this letter on behalf of the Commissioner stating the referral to the Parks Legal Division, General Counsel.  Phone calls were made by his attorney to the Park’s attorney supplying needed information.  On October 3, 2010 a letter was sent that remained unanswered.  Then an Article 78 proceeding was filed on November 5, 2010. 

The petitioner argues that her untimely filing of the notice of claim “was a good faith reliance on the Parks Commissioner duty to inquire and to act.”  The petitioner waited to file a lawsuit because of this confidence. 


Three aspects determine whether a court can approve an application for leave to serve a late notice of claim pursuant to General Municipal Law 50-e.  It is “understandable” the resistance to bring a suit to litigation because of an immense amount of time and money involved, and the hope that the “matter could be resolved.”  The Department also obtained the petitioner’s entire personal file containing records of events leading up to her termination.   They also had opportunities to contact the petitioner and her attorney to obtain needed information.  The late notice of claim was also within months. 

The petition for leave to serve a late notice of claim was granted.