Resto v. City of New York

• Decision Date: 09 June 1997
• Citation: 240 A.D.2d 499,658 N.Y.S.2d 416
• Parties: In the Matter of Luz RESTO, etc., Respondent, v. CITY OF NEW YORK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 416

658 N.Y.S.2d 416

240 A.D.2d 499

In the Matter of Luz RESTO, etc., Respondent, v. CITY OF NEW YORK, Appellant.

Supreme Court, Appellate Division Second Department.

June 9, 1997.

Paul A. Crotty, Corporation Counsel, New York City (Leonard Koerner and Ellen B. Fishman, of counsel), for appellant.

Richard P. Neimark & Associates, LLP, Brooklyn (Eric Schneider and Jonathan L. Gleit, of counsel), for respondent.

Before ROSENBLATT, J.P., and MILLER, RITTER, SANTUCCI and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding, inter alia, for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5), the City of New York appeals from an order of the Supreme Court, Richmond County (Leone, J.), dated October 13, 1995, which granted the claimant's motion for leave to serve a late notice of claim and to commence an action against the Board of Education of the City of New York and the City of New York prior to a statutory hearing pursuant to General Municipal Law § 50-h.

ORDERED that the appeal from the provision of the order which is against the Board of Education of the City of New York is dismissed on the ground that the City of New York is not aggrieved thereby and the Board of Education of the City of New York is not a party to this appeal (see, CPLR 5511); and it is further,

ORDERED that the order is reversed insofar as reviewed, as a matter of discretion, and that branch of the claimant's motion which was for leave to serve a late notice of claim and to commence an action against the City of New York is denied; and it is further,

ORDERED that the appellant is awarded one bill of costs.

On July 8, 1993, the claimant was injured as a passenger in a school bus accident in which the bus went through a stop sign, through an intersection, onto a curb, through a two-foot high brick wall, and then crashed into a building entrance. The claimant filed a notice of claim dated September 28, 1993, against the Board of Education of the City of New York in which she asserted that it was vicariously liable for, inter alia, the negligent and reckless operation of the bus.

Subsequently, the claimant retained a new attorney who, 14 months after the accident, moved, inter alia, for leave to serve a late notice of claim against the City of New York asserting a claim that the City was negligent in failing to install a guardrail at the location in question and that, had a guardrail been present, it "would have greatly decreased or eliminated" her injury. The Supreme Court, without explanation, granted the application. In the exercise of our discretion, we determine that the claimant's motion should be denied and, accordingly, we reverse.

In determining whether leave to serve a late notice of claim should be granted, a court should consider, as key factors, whether the claimant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits (see, Matter of Pruden v. New York City Board of Educ., 235 A.D.2d 426, 652 N.Y.S.2d 96; Matter of Buddenhagen v. Town of Brookhaven, 212 A.D.2d 605, 622 N.Y.S.2d 547).

Here, the claimant has failed to provide a reasonable excuse for her delay in serving the City of New York with a notice of claim. In this respect, her claim that she was unable to file a timely notice of claim "[d]ue to her extensive injury and severe physical disability", is negated in light of her having filed a timely notice of claim against the Board of Education.

Moreover, neither the Police Accident Report nor the Fire Department Operations Report relied upon by the claimant as providing the City with notice of the claim make any mention of roadway conditions, design defects, or lack of a guardrail as possible causes of the accident. Those reports, therefore, did not furnish the City with actual knowledge of the essential facts constituting this belated claim (see, Matter of Finneran v. City of New York, 228 A.D.2d 596, 644 N.Y.S.2d 537; Matter of Zbryski v. City of New York, 147 A.D.2d 705, 538 N.Y.S.2d 315).

The claim against the City is premised on an entirely different theory than the one underlying the claim against the Board of Education. Thus, under the facts of this case, the plaintiff's theory that a guardrail would have greatly decreased or eliminated her injury is not only conclusory and speculative (see, Sherwood v. State of New York, 238 A.D.2d 396, 657 N.Y.S.2d 336; Sangirardi v. State of New York, 205 A.D.2d 603, 613 N.Y.S.2d 224), but could not have been reasonably anticipated by the City. Moreover, considering that critical elements have changed--particularly, the brick wall into which the bus crashed--which bear on the plaintiff's theory against the City, it would be unfair and prejudicial to require the City to defend a claim of this nature. This is true not only because the plaintiff's belated guardrail theory is speculative, but because a theory of this kind involves elaborate measurements as to angles, speed, and deflections, much of which depends on the discovery of witnesses and their recall (see, Sherwood v. State of New York, supra).

The unexcused delay and the passage of time has deprived the City of the opportunity to find witnesses promptly or otherwise conduct a timely and meaningful investigation of this matter on this belated theory. The City will be disadvantaged by having to reconstruct an accident scene without the advantages of having access to or knowledge of witnesses, measurements, speed, and the physics of the accident. Accordingly, the claimant's motion should have been denied.

ROSENBLATT, J.P., and RITTER and SANTUCCI, JJ., concur.

GOLDSTEIN, J., concurs in part and dissents in part, and votes to dismiss the appeal from the provision of the order which is against the Board of Education of the City of New York, and to affirm the order insofar as reviewed, with the following memorandum, with which MILLER, J., concurs:

The key factors in determining whether to permit service of a late notice of claim are whether the claimant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, whether the municipal defendant acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the public corporation in maintaining their defense on the merits (see, Matter of O'Dowd v. City of New York, 226 A.D.2d 642, 641 N.Y.S.2d 541; Matter of Buddenhagen v. Town of Brookhaven, 212 A.D.2d 605, 622...