Angeles-Ricart v. City of New York, 2007 NY Slip Op 30103(U) (N.Y. Sup. Ct. 2/27/2007)

• Court: New York Supreme Court
• Writing for the Court: Kevin J. Kerrigan
• Citation: Angeles-Ricart v. City of New York, 2007 NY Slip Op 30103(U) (N.Y. Sup. Ct. 2/27/2007), 2007 NY Slip Op 30103, 0027589, Motion Cal. Number: 1, Motion Seq. No. 1 (N.Y. Sup. Ct. Feb 27, 2007)
• Decision Date: 27 February 2007
• Docket Number: Motion Seq. No. 1,Motion Cal. Number: 1,0027589
• Parties: REYNALDO ANGELES-RICART and LUIS VERA, Petitioners, v. THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION and PAUL L. SIMPSON, Respondents.

Page 1

2007 NY Slip Op 30103(U)

REYNALDO ANGELES-RICART and LUIS VERA, Petitioners, v. THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION and PAUL L. SIMPSON, Respondents.

0027589

Motion Cal. Number: 1

Motion Seq. No. 1

Supreme Court of the State of New York, Queens County.

February 27, 2007

Motion Date: February 20, 2007

KEVIN J. KERRIGAN, Judge

Upon the foregoing papers it is ordered that the application is decided as follows:

Since there was no action pending at the time petitioners sought leave to serve a late notice of claim, they were required to proceed by way of a special proceeding (see Billone v. Town of Huntington, 188 AD 2d 526 [2^nd Dept 1992]). A special proceeding is commenced by service of a notice of petition and petition or an order to show cause and petition (see CPLR 304, 403[b]). Petitioners' order to show cause was not accompanied by a petition but only by an affidavit of petitioner Vera and an affirmation of petitioners' attorney. Nevertheless, this Court finds that the affidavit and the affirmation in support of the order to show cause contain all the essential elements of a petition. Therefore, since this defect is an irregularity which may be overlooked (see CPLR 2001; Billone v. Town of Huntington, supra), this Court deems the affidavit and affirmation in support of the order to show cause a petition.

Petitioners' application for an order granting leave to file a late notice of claim, pursuant to General Municipal Law §50 (e) (5), is denied and the petition is hereby dismissed.

Petitioner Vera allegedly sustained injuries when the motor vehicle in which he was a passenger and which was owned and operated by co-petitioner Ricart was struck by a vehicle owned by the Department of Transportation (DOT) and operated by Simpson, an employee of DOT on December 7, 2005.

A condition precedent to commencement of a tort action against a municipality or public corporation is the service of a notice of claim upon the municipality or public entity within 90 days after the claim arises (see General Municipal Law § 50-e[1][a]; Williams v. Nassau County Med. Ctr., 6 NY 3d 531 [2006]). The order to show cause on the instant petition was served on January 10, 2007, one year and 35 days after the accident and over 10 months past the 90-day deadline for filing a notice of claim.

The determination to grant leave to serve a late notice of claim lies within the sound discretion of the court (see General Municipal Law § 50-e[5]; Lodati v. City of New York, 303 A.D.2d 406 [2d Dept. 2003]; Matter of Valestil v. City of New York, 295 A.D.2d 619 [ 2d Dept. 2002], lv denied 98 NY 2d 615 [2002]). In determining whether to grant leave to serve a late notice of claim, the court must consider certain factors, including, inter alia, whether the claimant has demonstrated a reasonable excuse for failing to timely serve a notice of claim, whether the municipality acquired actual knowledge of the facts constituting the claim within ninety (90) days from its accrual or a reasonable time thereafter, and whether the municipality is substantially prejudiced by the delay (see Nairne v. N.Y. City Health & Hosps. Corp., 303 A.D.2d 409 [2d Dept. 2003]; Brown v. County of Westchester, 293 A.D.2d 748 [2d Dept. 2002]; Perre v. Town of Poughkeepsie, 300 A.D.2d 379 [2d Dept. 2002]; Matter of Valestil v. City of New York, supra; see General Municipal Law § 50-e[5]).

Petitioner has failed to articulate any excuse for his failure to serve respondents within the statutory period. Indeed, petitioner's attorney admits in his affirmation that "petitioner cannot proffer a reasonable excuse for the delay." Petitioner offers no excuse whatsoever in his affidavit in support of the petition.

Although the lack of a reasonable excuse for the delay is not, in and of itself, fatal to an application for leave to file a late notice of claim when weighed against other relevant factors (see Johnson v. City of New York, 302 AD 2d 463 [2^nd Dept 2003]), there are no other facts or circumstances presented herein that would weigh in favor of allowing the filing of a late notice of claim.

Petitioner failed to demonstrate that respondents had actual notice of the essential facts of the claim within 90 days after the claim arose or within a reasonable time thereafter. All that petitioner's counsel offers, in support of petitioner's burden in this regard, is the conclusory statement in his affirmation in support of the petition that respondents had actual notice because "petitioner was involved in a motor vehicle accident with a motor vehicle owned by the respondent and operated by the respondents' employee." Petitioner fails to allege, for example, that respondents had notice by way of their employees having prepared an incident report, (see, e.g., Hasmath v. Cameb, 5 A.D.3d 438[2d Dept. 2004]; see also, Matter of Continental Ins. Co. v. City of Rye, 257 A.D.2d 573 [2d Dept. 1999]).

Although it has been held that the municipal entity had actual notice where its employees were present and actually involved in the accident (see, Whitehead v. Centerville Fire Dist., 90 AD 2d 655 [3^rd Dept 1982]), there were other factors involved that imparted the requisite...