Resnick v. New York City Health & Hospitals Corp.

• Decision Date: 22 January 1994
• Citation: 612 N.Y.S.2d 315,161 Misc.2d 156
• Court: New York City Court
• Parties: Stewart B. RESNICK, Plaintiff, v. NEW YORK CITY HEALTH & HOSPITALS CORP., Defendant.

Page 315

612 N.Y.S.2d 315

161 Misc.2d 156

Stewart B. RESNICK, Plaintiff, v. NEW YORK CITY HEALTH & HOSPITALS CORP., Defendant.

Civil Court of the City of New York,

Richmond County, Small Claims Part.

Jan. 22, 1994.

Stewart Resnick, pro se.

Paul A. Crotty, NYC Corp. Counsel, Law Dept., Staten Island (John Bava, of counsel), for defendant.

JOSEPH J. MALTESE, Judge.

At the commencement of this trial an assistant corporation counsel made an oral motion on behalf of the defendant, the New York City Health and Hospitals Corp. (HHC) to dismiss this small claims negligence action on the ground that the pro se plaintiff failed to serve a notice of claim upon the proper party as required by General Municipal Law (GML) § 50-e.

The claim arose from a collision between the defendant's ambulance and the plaintiff's automobile. It is uncontroverted that within three weeks of the collision, the plaintiff obtained and served a form printed by the City entitled "CLAIM AGAINST THE CITY OF NEW YORK, AUTOMOBILE PROPERTY DAMAGE". The form was served upon "THE CITY OF NEW YORK, OFFICE OF THE COMPTROLLER" and less than one week after this service, the comptroller's office provided a written acknowledgment of the claim noting that the claim "is currently under investigation."

Six months later and well within the time limit prescribed by GML § 50-e, the plaintiff commenced this action, pro se, in the Small Claims Part of this court against the New York City Health and Hospitals Corp. The court record discloses that the defendant repeatedly adjourned this case for seven months which was approximately 14 months after the accident. Immediately upon the case being called for trial, the defendant's counsel made the instant oral motion to dismiss, claiming that the plaintiff had given the required ninety day notice of claim to the wrong agency--the Comptroller rather than the HHC.

The issue presented here is whether GML § 50-e is to be strictly applied to suits brought by plaintiffs appearing in the Small Claims Parts of this Court.

During the time the claim was being "investigated" and during the many months of adjournments, the Comptroller, HHC and the Corporation Counsel, which serves as counsel to both of these municipal entities, remained mute on the issue of proper notice. No report of the "investigation" was given to the plaintiff. No objection to service of the notice of claim upon the Comptroller rather than the HHC was made by either agency or their common counsel until the trial of this matter was about to begin.

The principal purpose of the notice of claim statute (GML § 50-e) is to afford a municipality or municipal corporation an opportunity to investigate claims against it, and to settle claims without the expense and risk of litigation, Salesian Soc. v. Village of Ellenville, 41 N.Y.2d 521, 524, 393 N.Y.S.2d 972, 362 N.E.2d 604 (1977).

Numerous courts have found this notice of claim statute to be onerous and have been reluctant to strictly enforce its harsh penalty which can produce unfair results such as the dismissal of the claim. One lower court found these provisions so repugnant and unjust that it declared GML § 50-e to be unconstitutional, see, Zipser v. Pound, 69 Misc.2d 152, 329 N.Y.S.2d 494 (City Ct. White Plains 1972). While the authority of a city court to declare a state statute unconstitutional may be questioned, it is well recognized that the strict enforcement of GML § 50-e can result in inequitable results.

The basic purpose of Civil Court Act § 1804 is to open the courts to persons seeking legal recourse without the prohibitive requirement of legal representation in matters having small monetary value. The maximum sum which may be claimed in the Small Claims Part is currently $2,000. It is difficult for the average person to obtain legal counsel to represent him/her at affordable cost-effective fees for such claims. Since most litigants in this court are not familiar with the law, the legislature has provided that this court render substantial justice based upon the same philosophy which excludes the Small Claims Part from the imposition of procedural rules of practice. ¹

The instant case is just such a situation contemplated by the legislature where "substantial justice" not procedural hurdles ought be observed. Other courts have used this "substantial justice" mandate of the legislature in arriving at equitable results in the Small Claims Courts.

It has long been held that in the Small Claims Part, justice must be administered without regard to procedural or evidentiary rules of law. See, Liberman v. American Lumbermans Mutual Casualty Co., 203 Misc. 816, 120 N.Y.S.2d 43 (1953).

In 1978 the Jefferson County Court found in Johnson v. Timmerman, 92 Misc.2d 626, 401 N.Y.S.2d 149, that the filing of a notice of claim as required by GML § 50-e is not a condition precedent to the commencement of an action in the Small Claims Part. Citing Section 1804 of the City Court Act, which is similar to § 1804 of the New York City Civil Court Act, the Jefferson County Court on appeal from a city court held that the statute is procedural in nature. The primary obligation of a small claims court is to render "substantial justice" so long as the court adheres to substantive law.

Judge York of the New York County Civil Court writing in Davis v. City of New York, 148 Misc.2d 422, 560 N.Y.S.2d 389 (1990) held that dispensing "substantial justice" as required by CCA § 1804 permitted the plaintiff to sue the defendant municipality without filing a timely notice of claim. Since GML § 50-e is a procedural statute, strict adherence to it need not be applied in the Small Claims Court.

More recently, Judge Braun of the New York County Civil Court in Lurie v. N.Y.C. Comptroller Off., 154 Misc.2d 950, 587 N.Y.S.2d 831 (1992) ruled that the Civil Court has the power to entertain a claimant's motion to serve a late notice of claim, and thus obviate the procedural impediment of GML § 50-e.

Lastly, Professor David Siegel in his practice commentaries to the statute states:

"This is also the section [CCA § 1804] that makes the ordinary procedural rules inapplicable, ..." (emphasis added). See: McKinney's Cons.Law of N.Y., Col. 29A, Part 3, NYCCA § 1804 page 285.

It is clear that procedural requirements such as the notice of claim provisions of GML § 50-e need not be strictly applied in the Small Claims Court.

In addition, the defendant, HHC, should be estopped from asserting the lack of a timely notice of claim upon it when its own acts delayed the proceeding to such an extent that the plaintiff was beyond the statutory time within which to move to extend the time to file a late notice of claim. Moreover, the action which was timely served upon the HHC was sufficient notice in this matter to protect the rights of the defendant against stale claims.

In this action, it is significant to note that this pro se plaintiff, in good faith, served his notice of claim, albeit upon the Comptroller and not the HHC, within three weeks of the occurrence. It is also significant that within one week the plaintiff received a letter from the Comptroller's office stating that they were "investigating" his claim. The tone of the letter implied that a response would be forthcoming at the conclusion of the investigation. Thus, the Comptroller having assumed the responsibility of providing the claim form, acknowledging the receipt of the completed plaintiff's claim and asserting in their acknowledgment that they were "investigating" the claim, effectively mislead the claimant. By such actions, the Comptroller unintentionally prevented the plaintiff from filing a proper notice of claim by lulling him into a false sense of security that his claim was being "investigated".

Clearly, the claimant believed that he had done what GML § 50-e required by filing a notice of claim within 90 days of the accident which was acknowledged by the Comptroller, an agent of the City of New York. The legislature and the courts of this state have long maintained the "legal fiction" that the Comptroller, as an agent of the City of New York, is a separate and distinct entity from other New York City municipal corporations such as the HHC, notwithstanding their common attorney, the New York City Corporation Counsel. However, to the lay person who is a pro se litigant, "the city is the city".

While this court is not empowered to dispense with this municipal corporate charade, it must be considered in arriving at "substantial justice". Municipalities and municipal corporations are creatures of the legislature created to serve the public, not to mislead it. ²

While GML § 50-e does not impose a burden upon the Comptroller to correct the plaintiff's improper procedural filing, a municipality cannot use its agents to lull the public into a false sense of security by supplying a form and affirmatively assuring the plaintiff that his claim is being "investigated" while strategically waiting for the brief statute of limitations to expire.

The Comptroller is aware that in addition to the many city agencies ³ for whom it accepts legal process, the City of New York and the legislature have created numerous agencies for which the Comptroller does not accept service on behalf of the City ⁴ and amongst them is the New York City Health...