Corwin v. City of N.Y.
| Decision Date | 27 July 2016 |
| Citation | 141 A.D.3d 484,36 N.Y.S.3d 118,2016 N.Y. Slip Op. 05663 |
| Parties | In re Ronald D. CORWIN, et al., Petitioners–Appellants, v. The CITY OF NEW YORK, et al., Respondents–Respondents. |
| Court | New York Supreme Court — Appellate Division |
141 A.D.3d 484
36 N.Y.S.3d 118
2016 N.Y. Slip Op. 05663
In re Ronald D. CORWIN, et al., Petitioners–Appellants,
v.
The CITY OF NEW YORK, et al., Respondents–Respondents.
Supreme Court, Appellate Division, First Department, New York.
July 27, 2016.
Law Office of Neil R. Finkston, Great Neck (Neil R. Finkston of counsel), for appellants.
Goodman & Jacobs LLP, New York (Thomas J. Cirone of counsel), for respondents.
MAZZARELLI, J.P., ANDRIAS, RICHTER, MANZANET–DANIELS, KAHN, JJ.
Judgment, Supreme Court, New York County (Frank P. Nervo, J.), entered April 30, 2015, denying the petition for leave to amend the notice of claim pursuant to General Municipal Law § 50–e(6) or to serve a late notice of claim pursuant to General Municipal Law § 50–e(5), and dismissing the proceeding, reversed, on the facts, without costs, and the petition for leave to serve a late notice of claim granted. Appeal from order, same court and Justice, entered July 10, 2015, to the extent it denied petitioners' motion to renew, unanimously dismissed, without costs, as academic.
Petitioner Ronald Corwin (petitioner) was injured when the front wheel of the Citi Bike he was riding struck an unpainted concrete wheel stop placed at the entrance to the Citi Bike station located at East 56th Street near Madison Avenue, causing the bike to flip over. Petitioner was riding his bike through the station to avoid car traffic. Petitioners (petitioner's wife is proceeding derivatively) served a timely notice of claim against the City alleging, inter alia, that petitioner's injuries were a result of its “negligence, recklessness and carelessness” in maintaining the station, particularly in the placement of a wheel stop that was not visible. The notice of claim alleged injuries to petitioner's head. Petitioners commenced a federal diversity action in the Southern District of New York that set forth the same allegations as those in the notice of claim.
In its answer in the federal action, the City asserted an affirmative defense that petitioner's own culpable conduct contributed to his injuries, but it did not specify what that conduct was. However, during a status conference before the United States Magistrate Judge who was overseeing discovery in the federal action, the City clarified that the comparative fault defense was based on the fact that petitioner had failed to wear a helmet. Petitioners' counsel indicated in the conference that petitioners would seek leave to amend the notice of claim to include an allegation that the City had a duty to provide helmets. When the City's counsel responded
that the City would oppose the amendment because it had no such duty, petitioners' counsel stated as follows:
“The point is they can't have it both ways. They can't say we didn't have a helmet but we don't provide helmets because we know that our City bike share program is not going to work if we have a helmet law.”
Petitioners then moved for leave to amend the federal complaint to add new allegations that the City was negligent in failing to provide helmets. They also sought to amend the complaint to add, as additional defendants, the private contractor that the City retained to implement the bike program; that entity's parent company, and a related entity that assisted in the design of the system. The Magistrate granted the motion. The City filed an amended answer that specifically cited as an affirmative defense that petitioner's failure to wear a helmet contributed to his injuries and damages.
Petitioners then commenced this proceeding seeking leave to amend their notice of claim to conform to the amended complaint in the federal action, and moved by order to show cause for leave to amend the notice of claim in accordance with the petition. They argued that they were entitled to the amendment under General Municipal Law § 50–e(6), which permits amendments to correct “a mistake, omission, irregularity or defect,” because the amendments were all still grounded in negligence and, therefore, did not assert new theories of liability. They further argued that the City would not be prejudiced by the amendment. They additionally asserted that, even if the amended notice of claim contained impermissible new theories of liability, the court could still grant leave to serve a late notice of claim under General Municipal Law § 50–e(5), since there was no unreasonable delay in seeking amendment, the City had timely actual knowledge of the essential facts constituting the claims, and, as such, the delay in asserting the new theory of liability did not substantially prejudice the City in maintaining its defense on the merits.
The proposed amended notice appended to the motion repeated the allegations set forth in the amended federal complaint. Specifically, it alleged that the City was “negligent, grossly negligent and committed professional negligence and malpractice” by designing the station in a way that it failed to provide adequate clearance, or a bike lane, between the station and vehicular traffic such that it required him to traverse the roadway portion of the station, and placed an unmarked concrete wheel stop at the end of that roadway, creating a trap-like condition. In addition to the allegations contained in the original notice of claim, the amended notice alleged that the City was “negligent, grossly negligent and committed professional negligence and malpractice” in designing the bike share program in a way that the unmarked concrete wheel stops were used at Citi Bike stations, and also that wheel stops were inconsistently placed at certain Citi Bike stations and not others
. Further, it added a claim that the City negligently failed to provide helmets to Citi Bike users, despite being aware that bike-share programs in other cities provided helmet rental systems.
The City argued in opposition that leave to amend was not warranted under General Municipal Law § 50–e(6) because petitioners were asserting new theories of liability. It further argued that leave to serve a late notice of claim was not warranted under General Municipal Law § 50–e(5) because (1) it did not have knowledge of the essential facts constituting the new claims within 90 days of the incident or a reasonable time thereafter,
(2) petitioners did not set forth a reasonable excuse for their lengthy delay in seeking leave to serve a late notice of claim, and (3) the delay would substantially prejudice the City's defense against the new claims. The City argued that the delayed amendments would deprive it of an opportunity to timely investigate the new claims and factual allegations. It further asserted that the individuals who had direct involvement with the implementation of the bike-share program were no longer employed by the City.
Supreme Court denied the motion. It held that the proposed amendment would introduce a new theory of liability and that the passage of 16 months between the accident and the application, coupled with the fact that discovery was under way, constituted prejudice to the City. It did not expressly address that part of the motion that sought leave to file a late, as opposed to an amended, notice of claim. Petitioners moved for leave to renew and reargue, based on documents provided by the City after disposition of the original motion. Such documents included, inter alia, the site plan for the subject Citi Bike station and a feasibility study of the bike-sharing program. Petitioners also pointed out that former City employees were actually available for discovery, that two of those former employees had in fact been served with nonparty deposition subpoenas in the federal action, and that the City had indicated that it would defend those employees during the depositions. They asserted that such new discovery showed that the City had the wherewithal to investigate all of the allegations contained in the proposed amended notice of claim, negating the City's argument that it would be prejudiced by an inability to investigate the new claim. In opposition, the City argued that the motion to renew was untimely and that, in any event, the availability of the employees did not change the prejudice analysis because it lacked control over them. The court denied the motion for leave to renew and reargue.
General Municipal Law § 50–e(6) provides as follows:
“Mistake, omission, irregularity or defect. At any time after the service of a notice of claim and at any stage of an action or special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby.”
The statute “authorizes the correction of good...
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