Reaves v. New York City Hous. Auth., 2004 NY Slip Op 50782(U) (NY 6/22/2004)

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: Janice A. Taylor
• Citation: Reaves v. New York City Hous. Auth., 2004 NY Slip Op 50782(U) (NY 6/22/2004), 2004 NY Slip Op 50782, 8088/2004. (N.Y. Jun 22, 2004)
• Decision Date: 22 June 2004
• Docket Number: 8088/2004.
• Parties: PAULETTE REAVES, Petitioner, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.

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2004 NY Slip Op 50782(U)

PAULETTE REAVES, Petitioner, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.

8088/2004.

Supreme Court of the State of New York, Queens County.

Decided June 22, 2004.

George J. Garafola, Esq., Silbowitz, Garafola Silbowitz & Schatz, for petitioner.

Ross H. Gould, Esq., London Fischer LLP, for respondent.

JANICE A. TAYLOR, J.

The determination to grant leave to serve a late notice of claim lies within the sound discretion of the court (see, General Municipal Law § 50-e[5]; Lodati v. City of New York, 303 A.D.2d 406 [2d Dept. 2003]; Matter of Valestil v. City of New York, 295 A.D.2d 619 [2d Dept. 2002]). In determining whether to grant leave to serve a late notice of claim, the court must consider certain factors, including, inter alia, whether the claim involves an infant, whether the claimant has demonstrated a reasonable excuse for failing to timely serve a notice of claim, whether the municipality acquired actual knowledge of the facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and whether the municipality is substantially prejudiced by the delay (see, Nairne v. N.Y. City Health & Hosps. Corp., 303 A.D.2d 409 [2d Dept. 2003]; Brown v. County of Westchester, 293 A.D.2d 748 [2d Dept. 2002]; Perre v. Town of Poughkeepsie, 300 A.D.2d 379 [2d Dept. 2002]; Matter of Valestil v. City of New York, supra; see, General Municipal Law § 50-e[5]; Hasmath v. Cameb, 2004 N.Y. App. Div. LEXIS 2446 [2d Dept. 2004]; Matter of Konstantinides v. City of New York, 278 A.D.2d 235 [2d Dept. 2000]; Matter of Kittredge v. New York City Hous. Auth., 275 A.D.2d 746 [2d Dept. 2000]).

The excuse proffered by petitioner for the delay, to wit, fear of reprisal by the New York City Housing Authority (hereinafter "NYCHA") in the form of being evicted if she brought a claim against it, is unsubstantiated and purely conjectural, essentially amounting to ignorance of the statutory mandates, which is not assistive to the petitioner in support of her petition (see, Anderson v. City Univ. of N.Y., 2004 N.Y. App. Div. LEXIS 8425 [2d Dept. 2004]; Tineo v. City of New York, 273 A.D.2d 397 [2d Dept. 2000]; Gilliam v. City of New York, 250 A.D.2d 680 [2d Dept. 1998]).

However, for the reasons which follow, the court finds that the petitioner proffered sufficient evidence to demonstrate that the defendant NYCHA obtained timely actual notice of the essential facts of the within claim within ninety (90) days after the claim arose by way of its employees having prepared an incident report or reports, contemporaneous with the accident and the existence of the allegedly defective condition.

In order to satisfy the mandates of the statute to impart notice to a municipal entity, the petitioner must demonstrate, not knowledge of the occurrence, or alleged wrong, but rather, knowledge of the nature of the claim (see, e.g.,Pico v. City of New York, 2004 N.Y. App. Div. LEXIS 7509 [2d Dept., decided June 1, 2004]; Frith v. N.Y. City Hous. Auth., 4 A.D.3d 390 [2d Dept. 2004]; Hasmath v. Cameb, 5 A.D.3d 438 [2d Dept. 2004]; Schifano v. City of New York, 775 N.Y.S.2d 33 [2d Dept. 2004]). Precisely how that knowledge must be imparted to the municipal agency is the more vexing issue. Petitioners seeking to interpose a late notice of claim have argued that knowledge can be ascribed to a municipal entity solely by virtue of its preparation of an accident report regarding the incident (see, Pico v. City of New York, supra; Frith v. N.Y. City Hous. Auth., supra; Hasmath v. Cameb, supra; Schifano v. City of New York, supra). Courts addressing that issue have held that, for an accident report to impart such knowledge, there must be a logical nexus between the occurrence causing injury and the negligence of the party against whom the claim is sought to be interposed (see, e.g., Quilliam v. State, 282 A.D.2d 590 [2d Dept. 2001]).

This court finds that the latter parameters have been met in the case at bar, in which the petitioner filed an accident report contemporaneously with the occurrence, and within the statutory period, the contents of which advised NYCHA that the petitioner "fell and was injured due to broken, worn and missing kitchen tiles" (Affidavit of Paulette Reaves, pp. 1-2, paragraph 3). The petitioner signed the report, but was not given a copy (Id). These facts are uncontroverted by NYCHA.

For this court to deny leave to file a late claim under the facts at bar would be to require the claimant herein to have literally advised NYCHA in her accident report, not only that she injured herself in her apartment due to broken floor tiles in her kitchen, but that, as a result of the foregoing, she intended to sue NYCHA. It is indeed an onerous, if not preposterous burden upon the claimant, and other similarly-situated lay persons, to require them to affirmatively declare, in filing an accident report, that they "are going to sue" NYCHA in connection with the events described in the accident report. The court cannot permit NYCHA to disavow knowledge of a claim by intentionally blinding itself to the obvious fact that someone reported to them that she was injured due to an allegedly dangerous condition in one of its apartments. Nor can the court validate NYCHA's conscious decision herein not to investigate the circumstances of the incident, when it had the opportunity to do so within the statutory period. Likewise, the court rejects NYCHA's argument that it came to petitioner's apartment just to "repair", rather than "to investigate" her claim (see, Affidavit of John Kline, at pp. 1-2, paragraph 4). This is a disingenuous argument premised upon a manufactured distinction. The conspicuous omission of the petitioner's accident report in NYCHA's attorney's opposition papers, which deprived the court of the opportunity to examine said report, leads this court to conclude that the accident report exists, is in the possession of NYCHA, and that the petitioner's affidavit accurately sets forth the details of the occurrence and the dangerous condition given to NYCHA within that report.

This court further holds that any prejudice on the part of NYCHA in terms of its inability to investigate the transient condition alleged in this case due to the lapse of time, was entirely self-inflicted. With knowledge that a tenant was injured, allegedly as a result of a problem with broken floor tiles in her apartment, personnel employed by NYCHA reported to her apartment to repair the condition, but failed to take pictures, measure, and otherwise investigate the saliency of the petitioner's claim when they had the opportunity to do so.

The very purpose of the notice of claim requirement is to permit NYCHA to investigate a claim in a timely fashion, hopefully at a time when the condition allegedly involved remains unchanged, in order to permit the agency to determine if the claim has validity, and perhaps should be resolved by way of settlement, or whether it is a defensible claim that ought to be resisted, and to allow NYCHA to build a defense. This purpose is thwarted when, as in the case at bar, NYCHA receives notice by virtue of an accident report of a condition that has allegedly resulted in personal injuries to one of their tenants, reports to the scene, has every opportunity to investigate the circumstances, take pictures and measurements, and examine the instrumentality involved, but chooses for unexplained reasons not to do so. Clearly, NYCHA had knowledge, and the opportunity to not only repair, but to investigate the condition giving rise to this claim, but consciously failed to avail itself of that opportunity, to its own prejudice.

The First Department's decision in Lopez v. NYCHA, (193 A.D.2d 473 [1st Dept. 1993]), cited by respondent, is bereft of sufficient facts to enable this court to analyze its applicability to the case at bar. Moreover, the court finds the respondent's attempt to squeeze the facts of this case within the ambit of the First Department's...