Bullard v. City of New York
Decision Date | 13 March 1986 |
Citation | 499 N.Y.S.2d 880,118 A.D.2d 447 |
Parties | Ruthann BULLARD, Plaintiff-Appellant, v. CITY OF NEW YORK, Defendant-Respondent. |
Court | New York Supreme Court — Appellate Division |
L.J. Lamatina, New York City, for plaintiff-appellant. F. Leoussis, New York City, for defendant-respondent.
Order, Supreme Court, New York County (Richard Wallach, J.), entered on October 25, 1984, unanimously affirmed for the reasons stated by Richard Wallach, J., at Special Term, without costs and without disbursements.
All concur except KASSAL, J., who concurs in a memorandum as follows:
In moving for relief, appellant claimed that when she learned of her son's death, she became "severely depressed and confused," was "not able to maintain my train of thought for any length of time" and "have alot [sic] of trouble sleeping at night." Undoubtedly, a tragic loss under these circumstanc is emotionally upsetting and may cause depression. But, without further factual proof, it does not rise to the level of "mental incapacity". Unquestionably, depression may range from severe and immobilizing, on the one hand, to mild and non-debilitating, on the other. However, the short, two-paragraph statement from her employer's medical director, Dr. Brayton, is palpably insufficient in that it is a general statement without specifics. He briefly reported that appellant was "distressed and grieving over the death of her son" and that she was referred to a counselor and a psychiatrist for treatment. The record, however, does not include a statement from either of these professionals as to whether treatment was ever rendered, and, if so, what it consisted of and their diagnoses. The absence of any definitive medical opinion by Dr. Brayton is somewhat perplexing, especially in view of appellant's claim in her affidavit that she had been "seeing" Dr. Brayton, who was her employer's psychiatrist. Appellant has not disclosed the name of the psychiatrist to whom she was allegedly referred by Brayton, nor does Brayton state that he in fact treated her. While Dr. Brayton opined that depression will "frequently" result in an inability to make decisions, no opinion was offered specifically dealing with plaintiff's condition or indicating that it incapacitated her for any period of time, thereby preventing her from filing a notice of claim. Clearly, the physician's statement does not set forth the extent of plaintiff's disabling condition with sufficient particularity so as to enable us to conclude that she was actually "incapacitated" within the terms of the statute. It does not contain "enough information from which the extent and duration of petitioner's disability can be ascertained" (Matter of Klobnock v. City of New York, 80 A.D.2d 854, 436 N.Y.S.2d 769). Nor does it establish that she was "disabled for such a substantial period of time following the accident so as to prevent [her] filing a timely notice of claim." (Ibid.) Rodriguez v. City of New York, supra, also involving a one year delay, is instructive. In that case, we affirmed an order denying leave to serve a late notice after finding the supporting affidavit "superficial" and insufficient to explain the delay or whether any medical attention was sought during the one year period:
While I sympathize with the appellant on her great loss and the plight of all those in a similar situation who seek to file late notices of claim, the Legislature has prescribed firm standards and we may not disregard the clear language of the statute. The fact that plaintiff was unaware that the law imposed a requirement that a notice of claim be filed within a certain period of time is insufficient as a legal excuse (Figueroa v. City of New York, 92 A.D.2d 908, 460 N.Y.S.2d 119). Thus, the claim here that she was...
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