Gerzel v. City of New York

• Decision Date: 25 February 1986
• Citation: 499 N.Y.S.2d 60,117 A.D.2d 549
• Parties: In re Andrew GERZEL, Petitioner-Appellant, v. The CITY OF NEW YORK, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 60

499 N.Y.S.2d 60

117 A.D.2d 549

In re Andrew GERZEL, Petitioner-Appellant, v. The CITY OF NEW YORK, Respondent-Respondent.

Supreme Court, Appellate Division First Department.

Feb. 25, 1986.

S. DiJoseph, New York City, for petitioner-appellant.

L.A. Cardwell, New York City, for respondent-respondent.

Before SANDLER, J.P., and SULLIVAN, LYNCH and ROSENBERGER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, (Blyn, J.) entered December 11, 1984, which denied petitioner's motion for leave to file a late notice of claim, reversed, on the law, the facts, and in the exercise of discretion, and the motion is granted, without costs.

On November 4, 1983, at approximately 4:25 P.M., the seventy-four year old petitioner Andrew Gerzel fell while descending the steps of the City owned premises at 19 Fulton Street in Manhattan by reason of an alleged discrepancy in the height of the risers of the steps. He sustained a fracture of his left lower arm. Petitioner reported the accident to an unnamed employee of the premises. A Sergeant Howell took two photographs of the steps, as witnessed by one Willie Williams, and an unidentified individual took Gerzel's statement and completed a report the same day. Apparently, the report was thereafter kept on file by the manager of the premises. On July 3, 1983, seven months after the accident, petitioner, by his attorney, served a verified notice of claim upon the office of the Comptroller. Upon disallowance of the claim, petitioner moved for leave to file a late notice of claim pursuant to Section 50-e of the General Municipal Law. Difficulty in ascertaining ownership of the premises; which had various shops, a restaurant, a cafe, and the South Street Seaport Museum, was the primary reason given for failure timely to file the notice of claim. Special Term denied the motion, holding that the City lacked actual notice of the essential facts constituting the claim. The court noted that the accident report relied upon to establish actual notice lacked any reference to a claimed defect or marked discrepancy in the height of the risers of the steps.

Our evaluation of the facts and circumstances in this personal injury action leads us to conclude that Special Term improvidently exercised its discretion in denying petitioner an opportunity to have his claim adjudicated on the merits. We reverse to grant the motion. General Municipal Law § 50-e empowers the courts to evaluate requests for relief from the ninety-day filing requirement by striking an "equitable balance ... between a public corporation's reasonable need for prompt notification of claims against it and an injured party's interest in just compensation." Heiman v. City of N.Y., 85 A.D.2d 25, 28, 447 N.Y.S.2d 158 (1st Dept., 1982), quoting Camarella v. East Irondequoit Cent. School Bd., 34 N.Y.2d 139, 142-143, 356 N.Y.S.2d 553, 313 N.E.2d 29 (1974). The statute, General Municipal Law § 50-e(5), directs the courts to consider "in particular, whether the public corporation ... acquired actual knowledge of the essential facts constituting the claim" within the ninety-day filing period or a reasonable time thereafter. Other relevant factors include the reason for the delay and whether the delay substantially prejudiced the public corporation's ability to defend on the merits. The only legitimate purpose served by Section 50-e is to protect the public corporation against spurious claims and to assure it "an adequate opportunity to explore the merits of the claim while information is still readily available." Teresta v. City of N.Y., 304 N.Y. 440, 443 108 N.E.2d 397 (1952). See also Matter of Beary v. City of Rye, 44 N.Y.2d 398, 412, 406 N.Y.S.2d 9, 377 N.E.2d 453 (1978).

It is manifest on the record that the City acquired actual knowledge of the essential facts constituting the claim by reason of the accident report and photographs. Innes v. County of Genesee, 99 A.D.2d 642, 643, 472 N.Y.S.2d 223 (4th Dept., 1984); Flynn v. City of Long Beach, 94 A.D.2d 713, 714, 462 N.Y.S.2d 243 (2d Dept., 1983), see also Caselli v. City of New York, 105 A.D.2d 251, 256, 483 N.Y.S.2d 401 (2d Dept., 1984). The report sets forth the date, time, and place of the alleged accident, the manner in which the injuries occurred and the nature of the injury. It reflects petitioner's statement that he "did not see the (2) step." The photographs clearly sufficed to apprise the City of the alleged negligence involved, a defective and dangerous condition of the steps. They may be used to prove constructive notice of an alleged defect since they were taken reasonably close to the time of the accident. See Karten v. City of New York, 109 A.D.2d 126, 127, 490 N.Y.S.2d 503 (1st Dept., 1985). The accident report and the photographs taken sufficiently connected the accident and the alleged defective condition in the steps. Compare Fox v. City of New...