Kelly v. City of N.Y.

• Court: New York Supreme Court — Appellate Division
• Citation: Kelly v. City of N.Y., 153 A.D.3d 1388, 63 N.Y.S.3d 385 (N.Y. App. Div. 2017)
• Decision Date: 27 September 2017
• Docket Number: 2016-06459, Index No. 11577/15.
• Parties: Patrick KELLY, respondent, v. CITY OF NEW YORK, defendant; New York City Housing Authority, nonparty-appellant.

153 A.D.3d 1388

63 N.Y.S.3d 385

Patrick KELLY, respondent,

v.CITY OF NEW YORK, defendant;

New York City Housing Authority, nonparty-appellant.

2016-06459, Index No. 11577/15.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 27, 2017.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Patrick J. Lawless of counsel), for nonparty-appellant.

Sacco & Fillas, LLP, Astoria, NY (David L. Roer of counsel), for respondent.

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and ANGELA G. IANNACCI, JJ.

In an action to recover damages for personal injuries, in which the plaintiff moved pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim against nonparty New York City Housing Authority, nonparty New York City Housing Authority appeals from an order of the Supreme Court, Queens County (Lane, J.), entered May 19, 2016, which granted the plaintiff's motion.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the plaintiff's motion is denied.

On February 20, 2015, Patrick Kelly allegedly was injured when he slipped and fell on snow and ice on a walkway within a housing complex owned by the New York City Housing Authority (hereinafter NYCHA). On May 19, 2015, Kelly served a notice of claim upon the City of New York, alleging that the accident occurred on the "walkway in front of 12–50 35th Avenue." According to an affirmation of Kelly's attorney, on August 5, 2015, Kelly testified at a General Municipal Law § 50–h hearing conducted by the City, at which time it "came out that the fall did not actually occur on a public sidewalk as [Kelly] thought he had accurately characterized to his counsel back in February." Rather, "[t]he fall actually took place on a walkway within the Rave[n]wood Housing Complex. It was determined soon thereafter that the correct department on [which] to serve a notice of claim" was NYCHA. By order to show cause dated March 8, 2016, Kelly moved, in this personal injury action he commenced against the City, for leave to serve a late notice of claim upon NYCHA. The Supreme Court granted the motion, and NYCHA appeals.

Although the application was improperly brought as a motion in an action pending against the City, the application will be treated as a special proceeding for leave to serve a late notice of claim upon NYCHA (see Matter of Lewin v. County of Suffolk, 239 A.D.2d 345, 346, 657 N.Y.S.2d 734 ; Matter of Sullivan v. Lindenhurst Union Free School Dist. No. 4, 178 A.D.2d 603, 604, 578 N.Y.S.2d 843 ; Rogers v. New York City Hous. Auth., 169 A.D.2d 763, 565 N.Y.S.2d 130 ).

In determining whether a petitioner should be granted leave to serve a late notice of claim against a public housing authority, the court should consider, as key factors, whether the petitioner had a reasonable excuse for the delay in serving a notice of claim, whether the public housing authority acquired actual knowledge of the essential facts of the claim within the statutory 90–day period or within a reasonable time thereafter, whether the petitioner made an excusable error concerning the identity of the public corporation against which the claim should be asserted, and whether the public housing authority will be substantially prejudiced by the delay in its defense on the merits (see General Municipal Law § 50–e[5] ; Public Housing Law § 157[2] ; Matter of Borrero v. New York City Hous. Auth., 134 A.D.3d 1104, 1104–1105, 22 N.Y.S.3d 540 ; Matter of Alvarez v. New York City Hous. Auth., 97 A.D.3d 668, 669, 948 N.Y.S.2d 648 ; Matter of Kalambalikis v. New York City Hous. Auth., 41 A.D.3d 848, 839 N.Y.S.2d 182 ).

Here, Kelly failed to provide a reasonable excuse for his failure to serve a timely notice of claim upon NYCHA. Kelly's excuse, that he first discovered the identity of the owner of the subject walkway at the General Municipal Law § 50–h hearing, arose from a lack of due diligence in investigating the matter, which is an unacceptable excuse (see Matter of Placido v. County of Orange, 112 A.D.3d 722, 723–724, 977 N.Y.S.2d 64 ; Matter of Moore v. New York City Hous. Auth., 89 A.D.3d 1088, 933 N.Y.S.2d 606 ; Matter of Devivo v. Town of Carmel, 68 A.D.3d 991, 992, 891 N.Y.S.2d 154 ). Even if Kelly made an excusable error in identifying the public corporation upon which he was required to serve a notice of claim, he failed to proffer any explanation for the additional seven-month delay between the time that he discovered the error and the filing of his application for leave to serve a late notice of claim (see Kuterman v. City of New York, 121 A.D.3d...