Goodwin v. Nyc Hous. Auth.

• Decision Date: 01 May 2007
• Docket Number: 8201.
• Citation: 42 A.D.3d 63,2007 NY Slip Op 03790,834 N.Y.S.2d 181
• Parties: CHARLIE GOODWIN, JR., et al., Appellants, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.
• Court: New York Supreme Court — Appellate Division

42 A.D.3d 63

834 N.Y.S.2d 181

2007 NY Slip Op 03790

CHARLIE GOODWIN, JR., et al., Appellants, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.

8201.

Appellate Division of the Supreme Court of the State of New York, First Department.

May 1, 2007.

Pollack, Pollack, Isaac & DeCicco, New York City (Kenneth J. Gorman and Brian J. Isaac of counsel), and Rose A. Rossi, White Plains, for appellants.

Herzfeld & Rubin, P.C., New York City (Neil R. Finkston, Herbert Rubin and David B. Hamm of counsel), for respondent.

OPINION OF THE COURT

CATTERSON, J.

This appeal in a slip-and-fall action where a city agency rejected the plaintiff's notice of claim for insufficient particularity, presents the Court with the opportunity to reexamine the circumstances upon which a notice of claim may be amended.

On October 14, 2002, Charlie Goodwin, Jr. (hereinafter referred to as the plaintiff) fell down the stairs at the St. Mary's Projects, a building owned by the New York City Housing Authority (hereinafter referred to as NYCHA) in the Bronx. The plaintiff claims that as a result of the fall he sustained severe personal injuries rendering him paraplegic. His wife, Williette Goodwin seeks damages for loss of consortium.

The plaintiff served NYCHA with a notice of claim on December 24, 2002—71 days after the accident occurred, and thus well within the statutory 90-day notice of claim period. (See General Municipal Law § 50-e.)^* The notice of claim identified the time of the accident (October 14, 2002, between 7:00 and 7:30 P.M.) and the place where the accident occurred (St. Mary's Projects, 665 Westchester Ave., Bronx, NY 10455). As to the requirement of "the manner in which the claim arose," the plaintiff stated: "Claimant was walking down steps from 10th to 9th floor. He fell down steps, Exit B staircase, at landing of the 9th floor." As to injuries claimed, the notice indicated that the plaintiff "sustained severe spinal cord injury, resulting in paralysis; multiple bruises over body; laceration left hand; pain in arms and back."

Approximately three weeks later, one day after the 90-day notice of claim period expired, by letter dated January 15, 2003, NYCHA advised the plaintiff that it was rejecting the notice of claim because it "does not describe with sufficient particularity NYCHA's alleged negligence" and "NYCHA is severely prejudiced as it cannot conduct a proper investigation and otherwise assess the merits of the claim."

Although the letter was dated January 15, 2003, it was postmarked January 17, 2003 and received by plaintiff's counsel on January 21, 2003. Ten days later, on January 31, 2003, the plaintiff provided the particulars to NYCHA by filing another notice of claim form. In the section requiring description of "the manner in which claim arose," plaintiff now added the following: "Claimant tripped and/or slipped on broken/cracked/chipped stairs covered with debris, as claimant was walking down steps from the 10th to 9th floor. He fell down steps, Exit B staircase, at landing of the 9th floor. Claimant fell as a result of defendant's negligence in maintaining such stairway."

No further response was forthcoming from NYCHA following the filing of the corrected claim form. The record is also devoid of any indication that NYCHA held a General Municipal Law § 50-h hearing on the claim.

On October 9, 2003, the plaintiff commenced this action by filing a summons and complaint within the one-year-and-90-day statute of limitations period. NYCHA served its answer on October 28, 2003, also within the statute of limitations period. There was no reference in NYCHA's affirmative defenses to the plaintiff's purported improper and substantively deficient first claim form, or to the alleged untimely filing of the second claim form.

On October 15, 2004, NYCHA moved for summary judgment dismissing the complaint on the following grounds: that plaintiff's first notice of claim was defective in that it failed to provide adequate information for NYCHA to investigate; and that the plaintiff's correction, which NYCHA deemed to be a second notice of claim, was untimely since it arrived 17 days after the 90-day period had expired.

NYCHA followed up with the contention that the plaintiff was now barred from looking for leave from the court to serve a late notice of claim because the statute of limitations had expired. NYCHA also pointed out that if the plaintiff had moved for leave to file a late notice of claim before the statute of limitations expired, leave would undoubtedly have been granted by the court.

The motion court agreed with NYCHA. We do not. For the following reasons this Court holds that the motion court erred in labeling the correction of January 31, 2003 a second notice of claim, and thus in dismissing the complaint. The facts here indicate that rather than filing a late second notice of claim, the plaintiff amended a timely notice of claim without prejudice to NYCHA. Thus, dismissal of the plaintiff's complaint is at odds with precedent established by this Court.

This Court has consistently held that the notice of claim statute, General Municipal Law § 50-e, is to be applied flexibly. The Court has reiterated that flexibility is key "`so as to balance two countervailing interests: on the one hand, protecting municipal defendants from stale or frivolous claims, and on the other hand, ensuring that a meritorious case is not dismissed for a ministerial error.'" (Rosenbaum v City of New York, 24 AD3d 349, 354 [2005], revd on other grounds 8 NY3d 1 [2006].) This Court has further held that the statute was not meant to be used as "a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones." (Lomax v New York City Health & Hosps. Corp., 262 AD2d 2, 4 [1st Dept 1999]; see also Matter of Quiroz v City of New York, 154 AD2d 315, 316 [1989].)

In Lomax, we also looked at the issue of amending notices of claim. Specifically, we considered the amendment provision in General Municipal Law § 50-e (6) which states, in relevant part, that provided there is no prejudice to the other party, "[a]t any time after the service of a notice of claim and at any stage of an action ... a mistake, omission, irregularity or defect made in good faith in the notice of claim ... may be corrected, supplied or disregarded ... in the discretion of the court." (Emphasis added; Lomax, 262 AD2d at 3.)

The facts of this case warranted an exercise of discretion by the motion court to allow a nunc pro tunc correction of a good faith error, which correction was made in such timely fashion that, as a matter of law, it could not have prejudiced the defendant. NYCHA's characterization of the plaintiff's corrected claim form as a second notice of claim is merely a disingenuous attempt to place the issue within subdivision (5) (application for leave to serve late notice) of General Municipal Law § 50-e rather than subdivision (6) (mistake, omission, irregularity or defect, as to which amendment is permitted at any stage of the proceeding). By labeling the second claim form a late notice of claim, NYCHA further relies on well-settled law to support its contention that it had no obligation to assert untimeliness as an affirmative defense (Reaves v City of New York, 177 AD2d 437 [1st Dept 1991]), which assertion would have alerted plaintiff before the statute of limitations expired.

However, in order to prevail in its assertion that the plaintiff filed a late notice of claim without leave of the court, NYCHA must argue that the plaintiff's first notice of claim was substantively and fatally deficient. (See Mahase v Manhattan & Bronx Surface Tr. Operating Auth., 3 AD3d 410 [1st Dept 2004].) Indeed, on appeal, NYCHA, citing Olivera v City of New York (270 AD2d 5 [1st Dept 2000]) and Tiburcio v New York City Tr. Auth. (270 AD2d 110 [1st Dept 2000]), argues that plaintiff's second notice of claim cannot constitute an "amendment" of the original notice because it introduced theories of liability that were not set forth in the original notice and "[a]n amendment that would alter the substantive nature of the claim ... does not fall within the statute's purview."

NYCHA's reliance on Olivera and Tiburcio is misplaced. In Olivera, this Court held that the plaintiff could not amend a property damage claim by adding a personal injury claim. In Tiburcio, we held that the plaintiff's notice of claim was defective since plaintiff did not provide defendant with a theory of liability until the plaintiff's deposition more than a year after the accident.

In the instant case, there was no change in the theory of liability, and no prejudice could have been caused to NYCHA from receiving notice of plaintiff's theory within so short a time after the statutory period ended. The first notice of claim made very clear that this was to be an action for personal injuries. Negligence was the only theory of liability implied...