Chattergoon v. New York City Housing Authority

• Decision Date: 01 May 1990
• Citation: 554 N.Y.S.2d 859,161 A.D.2d 141
• Parties: Jankie CHATTERGOON, etc., Petitioner-Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 859

554 N.Y.S.2d 859

161 A.D.2d 141

Jankie CHATTERGOON, etc., Petitioner-Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Respondent-Appellant.

Supreme Court, Appellate Division,

First Department.

May 1, 1990.

A.E. DiJoseph, III, New York City, for petitioner-respondent.

R.T. Munsell, New York City, for respondent-appellant.

Before KUPFERMAN, J.P., and ROSS, MILONAS, ASCH and ELLERIN, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, Bronx County (Anita Florio, J.), entered May 19, 1989, which granted petitioner's motion for an order declaring, nunc pro tunc, that his notice of claim be deemed timely served, is reversed, on the law and facts, and the motion is denied with respect to claims other than that for wrongful death, without costs or disbursements.

Decedent was stabbed 11 times and killed in her apartment on December 3, 1987. The premises in question is owned and operated by the respondent New York City Housing Authority.

Petitioner, decedent's son, retained counsel on February 5, 1988, but a notice of claim, noticing an action for wrongful death and conscious pain and suffering, was served upon the respondent Housing Authority only on October 28, 1988. Petitioner, on February 16, 1989, appeared pursuant to section 50-h of the General Municipal Law for a hearing concerning the notice of claim. Thereafter, petitioner's attorney moved on March 1, 1989 for leave to file a late notice of claim with respect to the cause of action for conscious pain and suffering. The IAS court granted petitioner's motion.

The respondent concedes that since General Municipal Law § 50-e(1)(a) provides that a claimant's time to serve a notice of claim for wrongful death begins to run from the date of the appointment of a representative for the decedent's estate, the petitioner's wrongful death claim is timely since letters of administration were not granted to petitioner until August 16, 1988, and the notice of claim which included the claim for wrongful death was served within 73 days of the petitioner's receipt of limited letters of administration.

On an application to file a late notice of claim, the party seeking the relief must give a satisfactory explanation for the delay (Matter of Morris v. County of Suffolk, 88 A.D.2d 956, 451 N.Y.S.2d 448, affd. 58 N.Y.2d 767, 459 N.Y.S.2d 38, 445 N.E.2d 214; Rodriguez v. City of New York, 86 A.D.2d 533, 446 N.Y.S.2d 50, appeal dismissed 58 N.Y.2d 899, 460 N.Y.S.2d 531, 447 N.E.2d 79). The petitioner contacted his attorneys on February 5, 1988, well within three months of the date of the occurrence, December 3, 1987. The proffered excuse of said counsel for not timely filing the notice was that he did not determine that petitioner had a viable claim until April of 1988 because counsel encountered difficulty in obtaining facts due to the ongoing police investigation. Despite this conceded knowledge in April 1988, counsel still did not move for leave to serve a late notice of claim until March 1, 1989, almost a year later. Moreover, review of the notice demonstrates that the essential facts were necessarily known to the plaintiff and conveyed to counsel when he first retained counsel in February 1988. Thus, the excuse is patently inadequate, amounting simply to "law office failure", and that is not a sufficient excuse for failure to timely file the notice of claim (Bullard v. City of New York, 118 A.D.2d 447, 450, 499 N.Y.S.2d 880).

The IAS court found that by virtue of the ongoing police investigation by the Housing Police of the decedent's murder, the respondent had "actual notice of [the] occurrence". However, knowledge of the facts underlying an occurrence does not...