Harris v. City of New York

• Decision Date: 05 September 2002
• Parties: MAURICE HARRIS et al., Appellants,<BR>v.<BR>CITY OF NEW YORK, Defendant, and<BR>NEW YORK CITY TRANSIT AUTHORITY, Respondent.
• Court: New York Supreme Court — Appellate Division

297 A.D.2d 473

747 N.Y.S.2d 4

MAURICE HARRIS et al., Appellants,

v. CITY OF NEW YORK, Defendant, andNEW YORK CITY TRANSIT AUTHORITY, Respondent.

Decided September 5, 2002.

Concur — Tom, J.P., Sullivan, Wallach and Marlow, JJ.

The motion court properly exercised its discretion in denying plaintiffs' motion for leave to file a notice of claim some four weeks after expiration of the applicable 90-day deadline (General Municipal Law § 50-e [1] [a]). Although a causal nexus between infancy and late filing need no longer be shown (Ali v Bunny Realty Corp., 253 AD2d 356, 357), plaintiffs acknowledge on this appeal that neither infancy alone (see, Matter of Bagnasco v Suffolk County Water Auth., 272 AD2d 611; Rogers v City of Yonkers, 271 AD2d 593) nor ignorance of the law (Matter of Embery v City of New York, 250 AD2d 611; Gaudio v City of New York, 235 AD2d 228) provides a sufficient excuse for failure to file a timely notice of claim. While the lack of a reasonable excuse for the delay is not of itself fatal (see, Weiss v City of New York, 237 AD2d 212, 213), plaintiffs have failed to meet their burden with respect to two other factors—some prior actual notice and the absence of prejudice—which would be relevant in condoning the lack of reasonable excuse (id.; see also, Richardson v New York City Tr. Auth., 210 AD2d 38, 39). They do not allege that the infant's accident was ever previously reported, and it is undisputed that defendant Transit Authority did not receive notice of facts underlying the claim until the filing of the instant motion. In these circumstances, "[t]he unexcused delay in serving a notice of claim and the passage of time has deprived the City of the opportunity to find witnesses promptly or otherwise conduct a timely and meaningful investigation, especially given the transitory nature of the defect" (Matter of Embery v City of New York, supra at 611).

Contrary to plaintiffs' argument, the transitory nature of the defective condition asserted in the proposed notice of claim here ("a liquid substance, dirt and debris on the stairway") does not preclude the accrual of prejudice to defendants. Rather, it is a factor to be considered. Even where a municipal defendant has received some form of actual notice within the 90-day period, its claim of prejudice may be rebutted by the transitory nature of the condition, i.e., that timely notice of claim would make no difference (see, e.g., Gamoneda v New York City Bd. of Educ., 259 AD2d 348; Seise v City of New York, 212 AD2d 467, 469). Where, however, there is neither notice nor a reasonable excuse, the transitory nature of the defective condition weighs against the granting of an application to file a late notice of claim (see, e.g., Johnson v Katonah-Lewisboro School Dist., 285 AD2d 490; Matter of Embery v City of New York, supra). Furthermore, the flaw in plaintiffs' argument is that defendants' prompt investigation rights are not restricted to minute examination of the transitory condition. Since the gravamen of the claim is defendants' breach of a duty of care, they were prejudiced by delay of the opportunity to search for witnesses either to the accident itself or to those knowledgeable about the maintenance procedures in place immediately prior thereto.

Matter of Strauss v New York City Tr. Auth. (195 AD2d 322) and Matter of Ferrer v City of New York (172 AD2d 240), cited by plaintiffs, are distinguishable. The claimants in those cases had a reasonable excuse for the delay, in that they suffered disabling injuries; moreover, the defendants there received actual notice of the essential facts giving rise to the claim. Matter of Harris v Dormitory Auth. of State of N.Y. (168 AD2d 560) is also inapposite; the rationale there rested on an excusable confusion as to the proper governmental entity to be served with the notice of claim, a ground particularly mentioned as exculpatory by the applicable statute.

In response to the dissent, we would note our disagreement with the "finding" that the delay here is "reasonable in the circumstances." The "plain language" of General Municipal Law § 50-e (5) does not provide a basis for judicial "reasonableness" as a basis for relief from late filing of a notice of claim. The reasonableness referred to is linked to consideration of whether the defendant public corporation acquired actual notice within a reasonable time, wholly apart from the notice of claim. It is undisputed that no form of actual notice occurred here.

The dissent's invocation of Henry v City of New York (94 NY2d 275) is misplaced. In that case, the Court of Appeals held that once a timely notice of claim against a municipality is served under General Municipal Law § 50-e, any delay by a guardian or legal representative in timely commencing within the one-year-and-90-day limitation period imposed by General Municipal Law § 50-i would not bar the action, because CPLR 208 (the infancy toll) would operate to preserve the infant's rights. In our view, the policy considerations involved in tolling an infant's action (otherwise barred by the statute of limitations) are quite different from those requiring prompt notice of claim. We are not cited to any case where an infancy toll was applied to relieve the claimants of pre-action notice of claim. Equally compelling is the fact that none of the parties ever raised this argument either in prior proceedings or on appeal.

Mazzarelli, J., dissents in part in a memorandum as follows:

I would modify the order appealed from to grant plaintiffs' motion for leave to file a late notice of claim with respect to the infant plaintiff's claim, and otherwise affirm.

General Municipal Law § 50-e (5) provides as follows:

"Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one. The extension shall not exceed the time limited for the commencement of an action by...