Maiello v. City of New York

• Decision Date: 24 April 1980
• Citation: 103 Misc.2d 1064,427 N.Y.S.2d 381
• Parties: Vivian MAIELLO and Thomas Maiello, Plaintiffs, v. The CITY OF NEW YORK, Defendant.
• Court: New York City Court

Page 381

427 N.Y.S.2d 381

103 Misc.2d 1064

Vivian MAIELLO and Thomas Maiello, Plaintiffs, v. The CITY OF NEW YORK, Defendant.

Civil Court of the City of New York, Queens County.

April 24, 1980.

Paul A. Krez, New York City, for plaintiffs

Barbara McLean, Astoria, for defendant.

OPINION

CHARLES H. COHEN, Judge.

This is an action against the defendant City of New York by plaintiff wife to recover damages for personal injuries and by her husband, in a derivative action, to recover for medical services and expenses. There was a jury verdict in favor of the plaintiff wife but against the plaintiff husband. The plaintiff husband moved to set aside the verdict disallowing any recovery in the derivative action. The defendant moved to set aside the verdict in favor of the plaintiff wife on the ground that the notice of claim does not sufficiently describe "the place where" the claim arose as required by subdivision 2 of section 50-e of the General Municipal Law. With respect to defendant's motion, it must be decided whether the notice was defective; if so, where the defendant was prejudiced thereby; and if not, whether this court may disregard the defect.

THE NOTICE OF CLAIM

At the outset, it must be observed that compliance with General Municipal Law § 50-e is a condition precedent to a claim against a municipality. Barchet v. New York City Transit Authority, 20 N.Y.2d 1, 281 N.Y.S.2d 289, 228 N.E.2d 361; see also, Salesian Society v. Village of Ellenville, 41 N.Y.2d 521, 523, 393 N.Y.S.2d 972, 362 N.E.2d 604; Visconti v. City of New York, 45 A.D.2d 480, 481, 359 N.Y.S.2d 307. In an attempt to comply with this section plaintiffs served a notice of claim, which, in paragraph 3 stated:

"The accident occurred on October 29, 1976, at approximately 1 p. m. on the public sidewalk on 36th Avenue between 24th Street and Crescent Street in Astoria, New York, as the claimant, Vivian Maiello, was walking on the sidewalk on the side of the street adjoining the Eliot Book Store toward Crescent Street. Claimant tripped over a defective raised sidewalk slab causing personal injury."

With respect to "the place where" the claim arose, it is stated that it took place "on the public sidewalk on 36th Avenue between 24th Street and Crescent Street in Astoria, New York . . . on the side of the street adjoining the Eliot Book Store." It is noted that the phrase "toward Crescent Street" modifies the verb "was walking" and does not state where, between 24th Street and Crescent Street, the accident occurred.

IS THE NOTICE DEFECTIVE?

The Court of Appeals in Purdy v. City of New York, 193 N.Y. 521, 523-524, 86 N.E. 560, 561-562, referring to an earlier notice of claim statute set forth the following general principle concerning what must be stated as follows:

"The plain purpose of this statute, and of similar provisions in the charters of the various municipalities throughout the state, is to guard them against imposition by requiring notice of the circumstances of an injury upon which a claim for damages is made, so that its authorities may be in a position to investigate the facts as to time and place, and decide whether the case is one for settlement or litigation. The statute before us, reasonably construed, does not require those things to be stated with literal nicety or exactness, but it does require such a statement as will enable the municipal authorities to locate the place and fix the time of an accident. When a notice contains the information necessary for that purpose, it is a substantial compliance with the statute, but when it falls short of that test it is insufficient."

In Rozell v. City of New York, 271 App.Div. 832, 65 N.Y.S.2d 864, the Appellate Division, 2nd Department, declared that:

"The description of the alleged defective part of the sidewalk as 'on east side of Troy Avenue between Prospect Place and Park Place, in the Borough of Brooklyn, City and State of New York' was vague and rendered the notice of intention to sue fatally defective."

The kind of information set forth in the Rozell notice and in the notice before this court is the same. In each, reference is made to a sidewalk on a particular side of a named street between two named intersecting streets.

Beyer v. City of North Tonawanda, 183 N.Y. 338, 76 N.E. 214, relied upon by plaintiffs, is distinguishable since the notice in that case did not merely state that the accident occurred on a particular side of a named street between two named intersections but further stated that it occurred "about half way" between the two named intersections.

Of particular interest is Schwartz v. City of New York, 250 N.Y. 332, 165 N.E. 517, also relied upon by plaintiffs. In that case, the notice claimed negligence of defendant's employees "in permitting a fire to be made in St. Mary's Park on St. Ann's Avenue and 141st Street in the Borough of The Bronx, near where said infant was sitting at said time." (p. 334, 165 N.E. p. 517). The court stated that "The real question is whether the notice is defective through its omission to state the particular place in the park of 32 acres where the accident occurred." (p. 334, 165 N.E. p. 517).

After making the general statement that "The place must be stated with sufficient particularity to enable the city to investigate the claim of negligence. Nothing more may be required. Circumstances must determine in each case whether the notice served is sufficient", the court declared that "the information contained in the notice of claim that the injuries were sustained by a fire in a small park was sufficient to enable the city to investigate the claim. It left no room for conjecture on the part of the city as to what particular fire the injured party would claim caused the injury." (p. 335, 165 N.E. p. 518).

However, before considering the specific incident involved, that is, a fire, the court, with respect to a defective sidewalk, declared (at 335, 165 N.E. at 517-518):

"It may be conceded that in a number of cases the court had held notices insufficient, though the place of the accident was stated with greater nicety and accuracy than in this case. (Purdy v. City of New York, supra; Casey v. City of New York, 217 N.Y. 192, 111 N.E. 764; Weisman v. City of New York, 219 N.Y. 178, 114 N.E. 70, Ann.Cas. 1918E, 1023.) In those cases the plaintiff claimed that a defective sidewalk caused the injuries. Though the city may have information that a person was injured at a particular time and place, yet the statute requires that the injured party should file a notice stating the 'time and place at which the injuries were received,' in order to apprise the city of the nature of the claim that may be made against it, and thus to give the city the opportunity to investigate such claim. Sidewalks are, ordinarily, not kept in a perfectly smooth condition. In the space of a few hundred square feet there may be many cracks, depressions and other defects of greater or less moment. The city cannot investigate a claim that a particular defect caused injuries unless the place is stated with sufficient particularity to enable the city to locate that defect and investigate the claim. We held that only such a notice constitutes a substantial compliance with the statute."

It appears, then, that where the claimed defect involves a defective sidewalk, a high degree of particularity in the description of the place where the defect appears, is required. Where it is claimed, for example, that a relatively unusual occurrence such as a fire took place in a certain area, a high degree of particularity is not necessary. Thus, if there were a claim of negligence arising out of a fire on a sidewalk on a particular side of a named street between two named intersecting streets, a notice in the form presented in this case might be sufficient. However, since defects in sidewalks are common, the municipality is entitled to more particularity in order to enable it to locate the particular defective sidewalk said to have caused the accident. In this case, involving a claim of a defective sidewalk, the notice of claim is insufficient and is defective. Rozell v. City of New York, 271 App.Div. 832, 65 N.Y.S.2d 864.

WAS DEFENDANT PREJUDICED?

It becomes important to determine whether defendant was prejudiced by the defective notice since subdivision 6 of section 50-e of the General Municipal Law states:

"Mistake, omission, irregularity or defect. At any time after the service of a notice of claim and at any stage of an action or special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby."

In this case, the jury made a finding that the length of Eliot Book Store along 36th Avenue between 24th Street and Crescent Street was 80 feet. There was testimony that Eliot Book Store took up three fourths of the block so that the length of the entire block is only slightly more than 100 feet. Further, the notice describes the defect with some particularity stating it was "a defective raised sidewalk slab." On January 7, 1977, less than 21/2 months after the occurrence, defendant took a photograph of the sidewalk along Eliot Book Store where it was claimed plaintiff fell. While the photograph portrays the whole block rather than the claimed defect, it indicates that defendant was in a position to, and did, investigate the claim. In "the context of this situation" it has not been shown that the failure of the plaintiff to have more specifically set forth the location of the defect has prejudiced the defendant. Dillard v. City of New York, 67 A.D.2d 878, 879, 413 N.Y.S.2d 682. See also, Mahoney v. Town of Oyster Bay, 71...