DeBose v. City of N.Y.

• Decision Date: 30 September 2010
• Docket Number: No. CV–005828–09/RI.,CV–005828–09/RI.
• Citation: 28 Misc.3d 1240,958 N.Y.S.2d 307,2010 N.Y. Slip Op. 51651
• Parties: Chanel Robinson DEBOSE, Plaintiff, v. The CITY OF NEW YORK, Defendant.
• Court: New York Civil Court

28 Misc.3d 1240
958 N.Y.S.2d 307
2010 N.Y. Slip Op. 51651

Chanel Robinson DEBOSE, Plaintiff,
v.
The CITY OF NEW YORK, Defendant.

No. CV–005828–09/RI.

Civil Court, City of New York,
Richmond County.

Sept. 30, 2010.

Chanel Robinson Debose, Plaintiff Pro Se.

Michael A. Cardozo, Corporation Counsel, New York City, Attorney for Defendant.

KATHERINE A. LEVINE, J.

Plaintiff Chanel Robinson Debose (“plaintiff” or “Debose”) brings this action to recover $5,000 in damages for personal injuries she sustained while on the Staten Island Ferry (“ferry”). Defendant City of New York (“City”) moves to dismiss the complaint and for summary judgment based upon plaintiff's failure to serve defendant with a Notice of Claim within 90 days of the accident as required by General Municipal Law 50–E. Plaintiff opposes defendant's motion and cross moves for leave of court to file a late notice of claim.

On January 5, 2008, plaintiff, an attorney licensed in Louisiana, took the ferry during her trip to the New York City. While aboard the ferry, plaintiff's leg brushed against a protruding lock hinge of a chest positioned near the entry/exit door of the ferry. Plaintiff sustained a severe laceration to her leg that required treatment by the Staten Island Ferry Emergency Response Crew employed at the Dock (“crew”). Plaintiff gave the crew her personal information, including a copy of her driver's license, and the crew filled out an incident report. The crew advised her that she needed stitches and called an ambulance, which took plaintiff to the Richmond University Medical Center where she was treated and released later that night.

Plaintiff filed a Notice of Claim with defendant 11 months after the accident, and defendant disallowed the claim due to plaintiff's tardy filing of the Notice of Claim.

To commence a tort action against a municipality or public corporation, a claimant must serve a notice of claim within 90 days of the alleged injury. Morales v. New York City Transit Auth., 15 A.D.3d 580, 581, 790 N.Y.S.2d 212 (2d Dept.2005). See, General Municipal Law § 50–e [1][a].

The service of a notice of claim within 90 days after the claim arose is a condition precedent to a lawsuit against a municipality. Brown v. City of New York, 95 N.Y.2d 389, 718 N.Y.S.2d 4, 740 N.E.2d 1078 (2000); Mtr of Hicks v. City of New York, 8 A.D.3d 566, 778 N.Y.S.2d 725 (2004). The purpose of the notice of claim is to protect the municipality against unfounded or stale claims and to assure it an adequate opportunity to explore the merits of the claim while information is still readily available. Mtr. of Peterson v. NYC Dept. of Environmental Protection, 66 A.D.3d 1027, 887 N.Y.S.2d 269 (2d Dept.2009); LFL Gallery, Inc. v. City of New York, Dept. of Environmental Protection, 11 Misc.3d 519, 812 N.Y.S.2d 820 (Sup.Ct., New York Co.2006)citing Camacho v. City of New York, 187 A.D.2d 262, 263, 589 N.Y.S.2d 421 (1st Dept 1992).

Pursuant to General Municipal Law § 50–e (5), the court may, in its discretion, extend the time to serve a notice of claim. Mtr. of Hicks, supra at 566–67, 778 N.Y.S.2d 725. In determining whether to permit service of a late notice of claim, the court must consider a number of factors, including whether (1) the movant demonstrated a reasonable excuse for his failure to serve a timely notice of claim, (2) the municipality or public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (3) the delay would substantially prejudice the municipality or public corporation in defending on the merits. Martinez v. City of New York, 63 A.D.3d 696–97, 879 N.Y.S.2d 589 (2d Dept.2009); Mtr of Hicks v. City of New York, supra, Williams v. Nassau County Med. Ctr., 13 A.D.3d 363, 364, 786 N.Y.S.2d 207 (2d Dept.2004); Mtr. Of Flores v. County of Nassau, 8 A.D.3d 377, 777 N.Y.S.2d 739 (2d Dept.2004); Mtr. Of Fierro v. City of New York, 271 A.D.2d 608, 609, 706 N.Y.S.2d 451,(2d Dept.2000).

In Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 851 N.Y.S.2d 218 (2nd Dept.2008), the court extensively discussed the parameters in which it could entertain late notices of claim. The court found that the most important factor to consider in deciding whether to accept a late of notice of claim was whether the municipal entity received actual knowledge of the facts constituting the claim in a timely manner. Id. at 147, 851 N.Y.S.2d 218.See, Casias v. City of New York, 39 A.D.3d 681, 833 N.Y.S.2d 662 (2nd Dept.2007); Mtr of Battle v. City of New York, 261 A.D.2d 614, 615, ...