Jusino v. New York City Housing Authority

Decision Date29 April 1999
Citation255 A.D.2d 41,691 N.Y.S.2d 12
Parties, George JUSINO, etc., et al., Petitioners-Appellants, v. NEW YORK CITY HOUSING AUTHORITY, Respondent-Respondent. In re Application of George Jusino, etc., et al., Petitioners-Appellants, For Leave to File, etc., v. New York City Housing Authority, Respondent-Respondent.
CourtNew York Supreme Court — Appellate Division

Steven J. Mines, of counsel (Dubow & Smith, attorneys) for petitioners-appellants.

Vincent R. Fontana, of counsel (Nina Cangiano, on the brief, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, attorneys) for respondent-respondent.

BETTY WEINBERG ELLERIN, P.J., JOSEPH P. SULLIVAN, MILTON L. WILLIAMS and PETER TOM, JJ.

ELLERIN, P.J.

At issue on this appeal is whether an infant's absence from the country due to his parent's military service will excuse his unavailability for an examination pursuant to General Municipal Law § 50-h.

On January 17, 1992, when he was 11 years old, George Jusino, Jr. ["George Jr."] allegedly suffered an injury when a window fell on his hand while he was visiting his aunt in an apartment building owned and operated by respondent, New York City Housing Authority ["NYCHA"]. Shortly after the accident, and before a notice of claim was filed, George Jr. moved to Germany, where his father was on active duty with the United States Army. However, within 90 days of the injury, a notice of claim, describing the date, location and circumstances of the accident and the injury, was filed on George, Jr.'s behalf by his aunt, Norma Feliciano, who identified herself as his "guardian". Attached to the notice was a complaint from the tenants' association to NYCHA regarding a defective window in the aunt's apartment stating that it was the second time it had fallen on someone.

When NYCHA scheduled an examination of George Jr. pursuant to General Municipal Law § 50-h, it was adjourned on consent several times, until, in March, 1993, the first of the two proceedings involved herein was commenced by George Jusino ["George, Sr."], as guardian for George, Jr., and individually 1 , and a motion was made for enlargement of time for George Jr. to appear at the § 50-h examination. Respondent opposed the motion on the grounds, inter alia, that petitioners were required to inform the court of the date the military service would be completed. On May 27, 1993, that motion was denied with leave to renew.

On April 1, 1997, George, Sr. was honorably discharged from the Army and moved to Savannah, Georgia with his son. By motion dated June 9, 1997, petitioners renewed their motion for an enlargement of time for George, Jr. to appear at a § 50-h examination, stating that he was now available and arguing that the delay in availability should be excused on the ground of their removal to Germany on military duty. In an order entered September 17, 1997, which is the subject of the instant appeal, Supreme Court refused to enlarge the time for the § 50-h examination on the ground that petitioners "... basically did not [do] much for 4 1/2 years. No legal excuse has been presented. Therefore because there must be finality to litigation motion is denied." Thus, the court apparently granted renewal of the decision made in 1993 upon the additional evidence that petitioners had now returned to the country and adhered to its original decision denying an enlargement of time to appear at the § 50-h examination. The court does not appear to have considered whether the delay may have been warranted on the basis of Section 304 of the Military Law but merely concluded that four-and-a-half years was too long. By denying their motion, the court, sub silentio, also denied petitioners' request to amend the notice of claim to substitute George Sr. for Ms. Feliciano as George Jr.'s guardian.

Petitioners thereupon started a new proceeding and moved for leave to file a late notice of claim on George Jr.'s behalf, which, if successful, would have restarted the period in which he would be required to appear at the § 50-h examination. They offered essentially the same rationale for filing a late notice of claim that they had set forth in the prior proceeding for an enlargement of time to appear at the examination i.e., that the delay should be excused based on their removal to Germany. This motion was denied on the ground that the issue had been previously decided in the September, 1997 order.

Petitioners appeal both the denial of their motion to enlarge George Jr.'s time to appear at the examination, and the denial of their motion for permission to file a late notice of claim. We find that the Supreme Court erred in denying the motion to enlarge George Jr.'s time to appear for the § 50-h examination and that the appeal from the denial of his subsequent motion for permission to file a late notice of claim is therefore rendered academic.

Clearly, respondent NYCHA is entitled, under General Municipal Law § 50-h, to an examination of the claimant upon oral questions, as well as to a physical examination where necessary (see, Matter of Dickey v. City of New York, 167 A.D.2d 238, 561 N.Y.S.2d 737; Best v. City of New York, 97 A.D.2d 389, 468 N.Y.S.2d 7, affd. 61 N.Y.2d 847, 473 N.Y.S.2d 975, 462 N.E.2d 152). Normally, such an examination must be held within 90 days of service of a demand therefor, although the claimant is entitled to seek an adjournment or postponement beyond the 90 day period, in which case the municipal entity is required to "reschedule the hearing for the earliest possible date available" (General Municipal Law § 50-h ).

Petitioners argue that George Jr.'s obligation to appear for the § 50-h hearing was stayed as a matter of law by Military Law § 304, which provides, in pertinent part:

At any stage thereof, any action or proceeding in any court or in any adjudicatory ... proceeding before any state agency, including any ... public authority ... in which a person in military service is involved as a party, during the period of such service or within sixty days thereafter ... shall, on application to it by such person or some person on his behalf, be stayed ... unless, in the opinion of the court or adjudicatory ... agency, the ability of plaintiff to prosecute the action, or defendant to conduct his defense, or in any adjudicatory ... proceeding the ability of the party to represent his interest, is not materially affected by reason of his military service.

As a threshold matter, we find that the stay set forth in this section applies to § 50-h examinations, which constitute adjudicatory proceedings before a public authority. Moreover, we find that by informing the agency of and by moving for an enlargement of time in Supreme Court based on George, Sr.'s military service, petitioners properly applied for such relief. Thus, the remaining question is whether Military Law § 304 operates to stay the obligation of George, Jr., who was not actually in the military but was instead a minor dependent of a person in the military, to appear.

While the comparable Federal statute, i.e., the Soldiers' and Sailors' Civil Relief Act of 1940 (50 USC, Appendix § 501 et seq.) 2 has been held not to extend to tort claims by military dependents (see, Peace v. Bruce, 1988 U.S. Dist LEXIS 6278 [S.D. Ga.] ), the rationale for that decision is instructive inasmuch as it relies on specific language in the Federal statute limiting its application to persons actually serving in the military "and no others" (see also, Wanner v. Glen Ellen Corp., 373 F.Supp. 983, 986 [D. Vt.] ). 3

New York's corresponding statute is significantly different. Not only is its reach beyond that of the Federal statute as to the type of proceedings to which it will apply, including proceedings before administrative agencies such as the one now before us, but, even more significant in context of the case before us is the fact that it contains no similarly specific language restricting its application to specified members of the military "and no others".

We find that, under these circumstances, the § 304 stay is available to an infant who is in the care of a parent whose military duty causes the infant to be unable to "represent his interests." The purpose of this section is to protect those in the military from sacrificing their rights while serving their country. That purpose would be substantially undermined were we to require them to sacrifice the rights of their children. Contrary to NYCHA's argument, this is not an inappropriate use of § 304 as a sword, rather than as the shield it was meant to be (cf., Goot v. Bd. of Educ. of Waterford Halfmoon High School, 82 A.D.2d 985, 440 N.Y.S.2d 403, appeal dismissed, 54 N.Y.2d 833). Rather, it is use of the statute as a shield to protect the members of our armed services from harm not only to themselves, but to their dependent children as well. Moreover, inasmuch as the statute specifically provides that it will not be applied where the ability of the person asserting it to proceed is not affected by the demands of military service, we see no possibility that extending its protection to the dependent children of military personnel will afford them an unfair advantage.

We therefore find that petitioners were entitled to invoke § 304 to stay the necessity of appearing for the § 50-h examination. The applicability of the stay, however, does not fully resolve the matter before us since by the terms of the statute, the stay only extends for 60 days after cessation of the military service. Here, no attempt was made to appear for the examination until the motion to renew was brought 68 days after the return of the Jusinos to the United States. Therefore, the statutory protection is not dispositive.

Instead, we must look to the standard that the court should generally apply in granting an enlargement of time to appear for a § 50-h examination where a litigant has filed a timely notice of claim. In light of the fact that the § 50-h examination...

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