Napoles v. N.Y.C. Hous. Auth.
| Decision Date | 17 March 2022 |
| Docket Number | INDEX 154708/2021 |
| Citation | 2022 NY Slip Op 30887 (U) |
| Parties | FEDERICO NAPOLES Petitioner, v. NEW YORK CITY HOUSING AUTHORITY, Respondent. Motion Seq. No. 001 |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 9, 10, 11, 13, 15, 16, 17, 19, 20, 21, 22 23 were read on this motion to/for LEAVE TO FILE.
In this special proceeding, petitioner Fredierico Napoles seeks leave to file a late notice of claim and respondent New York City Housing Authority (NYCHA) opposes the application.[1]
As alleged in the petition, petitioner tripped and fell "on a broken, cracked, uneven sidewalk", on February 20 2020 when returning to his residence in a building owned by respondent NYCHA. (NYSCEF Doc. No. 1, ¶¶ 4, 5). Petitioner seeks leave to file a proposed notice of claim, pursuant to General Municipal Law §50-e (5), claiming that he was unaware of the requirement to file a timely notice of claim, that his concerns surrounding Covid-19 prevented him from seeking legal advice and that NYCHA was aware of the details of the accident based on an Occurrence Report filed several days after the accident and was thus not prejudiced by the late filing. (NYSCEF Doc. Nos. 1, 2, 5, 7).
Respondent NYCHA opposes the application and claims that petitioner has failed to offer a reasonable excuse for the late filing and that it has suffered prejudice as it first received notice of the accident one year and 87 days after the occurrence, on May 18, 2021, when it received the petition.
To commence a tort action against a municipality or a public corporation, the claimant is required to serve a notice of claim within 90 days of the alleged injury (see GML§ 50-e(1)(a); Jordan v. City of New York, 41 A.D.3d 658, 659, 838 N.Y.S.2d 624 [2d Dept. 2007]). Pursuant to General Municipal Law § 50-e (5) the court has discretion to determine whether to allow filing of a late notice of claim. In making this determination, the court must consider the factors set forth in the statute which include (1) whether the claimant had a reasonable excuse for the failure to timely serve a notice of claim; (2) whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter; and (3) whether the delay would substantially prejudice the public corporation in maintaining its defense on the merits (GML§ 50-e(5); see also Orozco v City of New York, 200 A.D.3d 559-560 [1st Dept 2021]; Perez ex rel. Torres v. New York City Health and Hospitals Corp, 915 N.Y.S.2d 562 [1st Dept. 2011]; Acosta v. City of New York, 39 A.D.3d 629, 630, 834 N.Y.S.2d 267 [2d Dept. 2007]; Schiffman v. City of New York, 19 A.D.3d 206, 207, 797 N.Y.S.2d 450 [1st Dept. 2005]).
In considering these factors, none is dispositive and the court has discretion to consider all other relevant facts and circumstances, (see, Pearson v. New York City Health and Hospitals Corp., 840 N.Y.S.2d 25 [1st Dept. 2007], aff'd, 10 N.Y.3d 852 [2008]). The presence or absence of any one factor is not determinative. (Plaza v. New York Health & Hospitals Corp., 949 N.Y.S.2d 25 [1st Dept. 2012]; Matter of Porcaro v. City of New York, 72d 450 [1st Dept. 2005]).
Initially, the court notes that petitioner has failed to establish a reasonable excuse for the delay in filing a timely notice of claim. Petitioner's lack of knowledge of the time requirements and his concerns surrounding the pandemic, are not sufficient to establish a reasonable excuse on this record.
It is well-settled that petitioner's lack of knowledge of the time requirements of the notice of claim statute is an unacceptable excuse for failure to timely file a notice of claim. (Casale v. City of New York, 945 N.Y.S.2d 92 [1st Dept. 2012]; Perez v. New York City Housing Authority, 548 N.Y.S.2d 222 [1st Dept. 1986]). The fact that petitioner herein was allegedly unaware that the law imposed a requirement that a notice of claim be filed within 90 days of the date of the alleged accident is insufficient as a legal excuse. Moreover, while the court is certainly sympathetic to petitioner's concerns about Covid-19, petitioner did not attach any supporting medical records detailing medical appointments or treatments that would have prevented him from retaining or communicating with an attorney at any point during the 90 days following the alleged incident. Thus, petitioner's general concerns about Covid-19, does not excuse plaintiffs late filing.
GML § 50-e, however, "is not intended to operate as a device to frustrate the rights of individuals with legitimate claims" and as noted, the court may excuse a delay in filing a notice of claim, in its discretion, upon consideration of the statutory factors and all other relevant facts and circumstances, (see Matter of Porcaro v. City of New York, 20 A.D.3d 357 [1st Dept 2005]). The statute is remedial in nature and as such should be liberally construed. (Id.; see also, Moynihan v. New York City Health and Hospitals Corp., 993 N.Y.S.2d 260 [1st Dept. 201]); Camacho v. City of New York, 589 N.Y.S.2d 421 [1st Dept. 1992]). Thus, although petitioner has failed to support his contention of physical incapacitation due to Covid-19 with any medical evidence, the lack of a reasonable excuse is not, standing by itself, sufficient to deny an application for leave to serve and file a late notice of claim (Harris v. City of New York, 297 A.D.2d 473, 473-474, 747 N.Y.S.2d 4 [2002], lv denied 99 N.Y.2d 503, 783 N.E.2d 896, 753 N.Y.S.2d 806 [2002]), especially where, as here, respondent had the opportunity to investigate the petitioner's claims (see Abbot v City of New York, 271 A.D.2d 364, 707 N.Y.S.2d 88 [2000]), and where, as here, the respondent cannot show that it was prejudiced by the delay (Weiss v City of New York, 237 A.D.2d 212, 213, 655 N.Y.S.2d 34 [1997]).
The most important factor a court must consider in deciding such a motion is whether the public corporation acquired actual knowledge of the essential facts constituting the claim within the time specified, (see, Padilla v. Department of Education of City of New York, 934 N.Y.S.2d 139 [1st Dept. 2011]). "Proof that the defendant had actual knowledge is an important factor in determining whether the defendant is substantially prejudiced by ... a delay." (Williams v. Nassau County Medical Center, 6 N.Y.3d 531 [2006]).
Here, the essential facts of petitioner's claim are set forth in the Occurrence Report annexed to the petition which specifies the date, time, and manner in which the occurrence is alleged to have happened. (NYSCEF Doc. No. 5). It provides that, . (Id.). The Occurrence Report even notes the identity, address and telephone number of a witness to the incident and plainly indicates that petitioner fell while coming into the building.
The Occurrence Report was completed by NYCHA on February 26 2020, six days after petitioner's accident and thus petitioner's proposed notice of claim supports the inference that respondent had actual notice of the claim within 90 days of its accrual (see Matter of Gerzel v City of New York, 117 A.D.2d 549, 550-551, 499 N.Y.S.2d 60 [ 1 st Dept 1986]). In the verified petition, petitioner provides specific details related to his...
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