Heiman v. City of New York

• Decision Date: 11 February 1982
• Citation: 85 A.D.2d 25,447 N.Y.S.2d 158
• Parties: Henry HEIMAN and Pilar Heiman, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 158

447 N.Y.S.2d 158

85 A.D.2d 25

Henry HEIMAN and Pilar Heiman, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Feb. 11, 1982.

Sheldon J. Tashman, New York City, for plaintiffs-appellants.

Carolyn E. Demarest, New York City, of counsel (Allen G. Schwartz, New York City, attorney), for defendant-respondent.

Before BIRNS, J. P., and SANDLER, CARRO, SILVERMAN and BLOOM, JJ.

SANDLER, Justice.

On July 20, 1978, at about 9:30 A.M., the plaintiff, Henry Heiman, 58 years old, was observed by a police officer unconscious, lying face down, and bleeding from his head and mouth on the sidewalk at the northeast corner of Amsterdam Avenue at 105th Street. The officer called for an ambulance and the plaintiff was taken to St. Luke's Hospital. The hospital record entries describe his injuries as head trauma, loss of consciousness, ecchymosis and swelling of the subdural region of the head. Plaintiff was discharged on July 24, 1978.

On September 3, 1978, plaintiff went to the emergency room of the hospital complaining of weakness in his right hand and episodes of difficulty in speaking. He was admitted to the hospital and remained in the hospital until September 22, 1978. The diagnosis included cerebral vascular accident and chronic subdural hematoma. Plaintiff underwent neurosurgery for drainage of the hematoma, and a lumbar puncture. He was discharged on September 22, 1978.

Plaintiff was again admitted to the hospital on October 11, 1978, with an admitting diagnosis of reaccumulation of the left subdural hematoma. He was discharged on January 17, 1979.

Shortly after plaintiff's discharge, he retained counsel who, without applying for judicial authorization, filed on his behalf a notice of claim on January 30, 1979 alleging that plaintiff had fallen as a result of a defective condition of the sidewalk which was attributed to the City's negligent failure to maintain and repair. Plaintiff was orally examined by defendant on April 25, 1979.

In an order dated July 17, 1979, Special Term denied a motion for leave to file a notice of claim nunc pro tunc on behalf of plaintiff Henry Heiman without prejudice to renewal upon attachment of hospital records, and denied a companion motion for such leave as to plaintiff's wife. Thereafter, Heiman and his wife commenced this action against the City of New York.

A new motion to permit filing of the notice of claim nunc pro tunc was denied at Special Term in the order appealed from on the ground that "no adequate showing of incapacity has been made to justify under General Municipal Law, § 50-e(5) the relief sought herein." We disagree and modify the order to the extent of granting the motion of Henry Heiman to file a notice of claim nunc pro tunc.

In 1976, the legislature responded to the pointed suggestion of the Court of Appeals in Camarella v. East Irondequoit Central School Board, 34 N.Y.2d 139, 143, 356 N.Y.S.2d 553, 313 N.E.2d 29 that "need for legislative reconsideration of the harsher aspects of Section 50-e is apparent ...," and extensively revamped provisions of that section governing the circumstances under which courts may properly extend the time to serve a notice of claim beyond the prescribed 90 day period.

As here pertinent, General Municipal Law, § 50-e(5), was amended to provide:

In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation ... acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision 1 or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was ... physically incapacitated, ...; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.

The Report of the Committee to Advise and Consult with the Judicial Conference on the Civil Practice Law and Rules, which drafted the revised law in the form accepted without change by the legislature, described in illuminating detail the significant changes intended to be introduced. See 21st Annual Report of the Judicial Conference (1976) p. 282 et seq. In its introductory discussion, the Committee noted that "the functional purpose of the notice of claim is to protect a public corporation against stale or unwarranted claims and to enable it to investigate claims timely and efficiently...." (at 286) The central purpose of the proposed amendments was defined, in the language of the Court of Appeals in Camarella, supra, to achieve "a more equitable balance, ... between the public corporation's reasonable need for prompt notification of claims against it and an injured party's interest in just compensation." (at 242, 243) In words singularly applicable here, the Report said:

It is intended that older judicial decisions construing the provisions of section 50-e rigidly and narrowly will be inapplicable as a result of these remedial amendments which will enable the courts to apply these provisions in a more flexible manner to do substantial justice. (at 287, 288)

Commenting specifically on the proposed reformulation of subdivision 5, the Committee observed: (at 300, 301)

The proposed amendment to subdivision 5 would significantly extend the discretion of the court to grant leave to file a late notice of claim. The subdivision, as amended, reflects a substantial change of policy in respect to applications for leave to file late notices of claim, giving the court greater flexibility in exercising discretion in this area.... The proposed amendment to subdivision 5 would give the court broad discretion, upon application, to extend the time to serve a notice of claim beyond the 90 day limit prescribed in paragraph a of subdivision 1.

As to that part of the amendment concerned with the effect of physical or mental incapacity on the granting of an application to file a late notice, the Committee noted the following significant, here pertinent, change: (at 301)

.... Under the proposed new statute the court would be free to consider such disability as an element bearing on the court's determination even though the disability may not have been the reason for the failure to serve the late notice ..."

When the facts presented on this appeal are evaluated in light of the new statutory formulation, and its clearly stated purposes, we are unable to agree that denial to this plaintiff of an opportunity to have his claim adjudicated on the merits represents, or comes close to representing, an "equitable balance ... between the public corporation's reasonable need for prompt notification of claims against it and an injured party's interest in just compensation." Central to the amended subsection 5 of the General Municipal Law, § 50-e, is a direction to the courts to consider "in particular, whether the public corporation ... acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision 1 or within a reasonable time thereafter." The words "reasonable time" are not defined, the obvious statutory intent being to permit courts large discretion after consideration of "all ... relevant facts and circumstances" to determine what is reasonable. Consistent with this purpose, courts have repeatedly sustained as having been brought within a reasonable time applications brought a longer period of time after the expiration of the prescribed 90 day period than the notice of claim here served on the City. See Beatty v. County of Saratoga, 74 A.D.2d 662, 424 N.Y.S.2d 772 (4 months); Wemett v. County of Onondaga, 64 A.D.2d 1025, 409 N.Y.S.2d 312 (7 months); Bureau v. Newcomb Central School District, 74 A.D.2d 133, 426...