Bovich v. E. Meadow Pub. Lib.

• Decision Date: 07 February 2005
• Docket Number: 2003-06281.
• Citation: 2005 NY Slip Op 00964,789 N.Y.S.2d 511,16 A.D.3d 11
• Parties: MARGARET M. BOVICH, Appellant, v. EAST MEADOW PUBLIC LIBRARY, Respondent.
• Court: New York Supreme Court — Appellate Division

16 A.D.3d 11

789 N.Y.S.2d 511

2005 NY Slip Op 00964

MARGARET M. BOVICH, Appellant, v. EAST MEADOW PUBLIC LIBRARY, Respondent.

2003-06281.

Appellate Division of the Supreme Court of the State of New York, Second Department.

February 7, 2005.

Appeal from an order of the Supreme Court, Nassau County (Geoffrey J. O'Connell, J.), entered June 9, 2003 in an action to recover damages for personal injuries. The order, insofar as appealed from, granted defendant's motion to dismiss the complaint for failure to comply with statutory notice of claim requirements, and denied plaintiff's cross motion for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5).

Rosenthal Curry & Kranz, LLP, East Meadow (Patrick W. Curry of counsel), for appellant.

Hoffman & Behar, LLP, Mineola (Warren S. Hoffman of counsel), and Mischel, Neuman & Horn, PC, New York City (Scott T. Horn of counsel), for respondent.

OPINION OF THE COURT

S. MILLER, J.

This appeal presents the opportunity to resolve an issue of municipal law that has not heretofore been explicitly addressed by any court of this state. Before suing a public library in tort for damages for personal injury, must the plaintiff comply with the notice of claim requirements of General Municipal Law § 50-e? We answer this question, as did the Supreme Court, in the affirmative. Having done so, however, we reverse the order dismissing the complaint insofar as appealed from, because we hold, contrary to the Supreme Court, that under the circumstances of this case, the plaintiff's cross motion for leave to serve a late notice of claim should have been granted.

Factual Background

On March 7, 2002, the plaintiff Margaret M. Bovich, then 86 or 87 years of age, tripped over an allegedly uneven sidewalk slab near the entrance to the defendant East Meadow Public Library (hereinafter the library). The plaintiff fell on her right side and fractured her right hip. At least one library employee came to the plaintiff's aid, helped her to a chair, and called for an ambulance. The plaintiff was hospitalized and incapacitated for at least one month following her injury; her fractured hip required surgical repair.

On or about July 13, 2002, the library had repairs performed on the uneven concrete near its entrance. The plaintiff became aware of this in August 2002 and decided to consult an attorney. She met with her present counsel on August 6, 2002. By letter dated August 8, 2002, counsel notified the library of the plaintiff's claim, asking that the matter be referred to the library's insurer for settlement. The library's insurer, however, disclaimed coverage due to the library's alleged failure to give it prompt notice of the claim. Thereafter, counsel for the library wrote to the plaintiff's counsel, advising, in substance, that because the plaintiff had never served a notice of claim, the library bore no liability. The plaintiff commenced this action in or about January 2003 seeking to recover damages due to the library's negligence.

Procedural Background

By notice of motion dated February 11, 2003, the library moved, pursuant to CPLR 3211 and General Municipal Law § 50-e (1) (a), to dismiss the action due to the plaintiff's failure to serve a notice of claim. In support, defense counsel argued, among other contentions, that the library was a "public entity" which, pursuant to General Municipal Law §§ 50-e and 50-i, could not be sued unless served with a timely notice of claim. Since the plaintiff had not served a notice of claim prior to commencing suit, and had not sought permission to serve a late notice of claim, the library concluded that her action could not be maintained.

On or about February 27, 2003, the plaintiff opposed the library's motion, and cross moved for leave to serve a late notice of claim in the event the court determined that a notice of claim was in fact a condition precedent to suit against a public library. Addressing the library's motion, the plaintiff argued that the library was not a "municipal corporation" as defined by General Construction Law § 66 (2), but was a "district corporation" as defined by General Construction Law § 66 (3). Citing Matter of Maik v Massapequa Lib. Bd. of Trustees (46 Misc 2d 159 [1965]), the plaintiff posited that the issue of whether a notice of claim was a condition precedent to suit against a public library was "an open question" that had not heretofore been decided. The plaintiff argued that General Municipal Law § 50-e only required the service of a notice of claim "where a notice of claim is required by law as a condition precedent" to suit (General Municipal Law § 50-e [a] [1]), and insofar as no statute expressly required the service of a notice of claim as a condition precedent to suit against a public library, then General Municipal Law § 50-e did not require a notice of claim as a condition precedent to suit herein.

In the alternative, the plaintiff asked for leave to serve a late notice of claim. The plaintiff averred that after her accident, she was aided by library employees, who called for an ambulance and attended to her until medical aid arrived. Furthermore, the plaintiff pointed out, during the summer of 2002 the library repaired the uneven concrete near the entrance where she fell. In the memorandum of law in support of the cross motion, the plaintiff's counsel asserted that library employees had compiled a written report of the accident. Thus, the plaintiff averred, the library had actual notice of the facts underlying her claim and would not be prejudiced by the service of a late notice of claim. Furthermore, counsel pointedly argued that in the absence of any statute expressly requiring the service of a notice of claim as a condition precedent to a suit against the library, the plaintiff's failure to do so within 90 days after her fall was even more excusable. These reasons, along with her postaccident hospitalization, the plaintiff asserted, sufficed to warrant the granting of her cross motion for leave to serve a late notice of claim. A proposed notice of claim, dated February 27, 2003, was submitted with the cross motion.

In response to the plaintiff's cross motion, the library submitted opposition papers dated April 28, 2003, and a second motion to dismiss the complaint, this one pursuant to CPLR 3211 (a) (10) for failure to join a necessary party. Central to both the library's opposition to the plaintiff's cross motion and its new motion was the library's alleged recent discovery that it was not the owner of its premises, but that the actual owner of the property where the plaintiff fell was the East Meadow School District (hereinafter the district), which provided the facilities to the library at no charge. Whereas in the new motion the library thus argued that the district should be the sole party to defend against the plaintiffs' claims, in its opposition papers the library argued, in essence, that the library was a creation of, and was funded by, the district, and as such, was a "municipal corporation through its inherent link to the . . . District," and was, like the district, thus covered by notice of claim requirements. Indeed, the library asserted that "[p]ublic libraries have never been deemed a public corporation exempt from the service of a [n]otice of [c]laim requirement."

To bolster this argument, the library cited Portnow v Shelter Rock Pub. Lib. (125 AD2d 382 [1986]) where the plaintiff was permitted to amend her notice of claim, and Skay v Public Lib. of Rockville Ctr. (238 AD2d 397 [1997]) where this Court affirmed an order, inter alia, denying a motion for leave to amend a notice of claim, both suits being against public libraries. The library suggested that notice of claim requirements were an "accepted facet" of litigation against public libraries.

On the issue of prejudice, the library charged that it had actually been greatly prejudiced by the plaintiff's failure to serve a timely notice of claim. Because she had not done so, the library had not provided timely notice to its liability insurer which had disclaimed coverage as a result. As such, and in the absence of an excuse for the extensive delay in seeking leave, the library argued that the plaintiff's cross motion for leave to serve a late notice of claim should be denied, and the library's motion to dismiss due to the plaintiff's failure to serve a timely notice of claim, should be granted.

In reply, the plaintiff reiterated the argument that a notice of claim was not a condition precedent to suit against a public library, but if the court disagreed, then her cross motion should be granted because the library received contemporaneous actual notice of the plaintiff's accident and compiled a written incident report. Furthermore, in response to the library's claim that the plaintiff's failure to serve a timely notice of claim was prejudicial because this directly led the library's insurer to disclaim coverage, the plaintiff argued that the relevant inquiry was whether the library would be prejudiced in defending against the plaintiff's claims on the merits, not whether its insurer had disclaimed coverage. Because it received actual contemporaneous notice, the library was not genuinely prejudiced. Accordingly, the plaintiff asked that her cross motion be granted, and the library's motion to dismiss for failure to serve a timely notice of claim, be denied.

Upon the foregoing papers, the Supreme Court determined that the library was indeed a public corporation, and thus the General Municipal Law precluded the plaintiff's suit absent the service of a notice of claim. The court determined that the plaintiff had not established the existence of a reasonable excuse for her failure to serve a timely notice of claim, and thus it denied her cross motion for leave to serve a late notice of claim and granted the library's motion to dismiss on this basis.¹ The plaintiff appeals.

Notice of Claim Requirements...