Seif v. City of New York

• Decision Date: 24 August 1995
• Citation: 218 A.D.2d 595,630 N.Y.S.2d 742
• Parties: Katherine SEIF, Petitioner-Respondent, v. The CITY OF NEW YORK, Respondent, and The New York City Housing Authority, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 742

630 N.Y.S.2d 742

218 A.D.2d 595

Katherine SEIF, Petitioner-Respondent, v. The CITY OF NEW YORK, Respondent, and The New York City Housing Authority, Respondent-Appellant.

Supreme Court, Appellate Division,

First Department.

Aug. 24, 1995.

D. Engelsher, for petitioner-respondent.

M.M. Horowitz, for respondent-appellant.

Before MURPHY, P.J., and RUBIN, ROSS, ASCH and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County, (Douglas McKeon, J.), entered May 19, 1994, which granted petitioner's application to file a late notice of claim against respondent the New York City Housing Authority, is unanimously reversed, on the law, the facts and in the exercise of discretion, the petition denied and the proceeding is dismissed without costs.

Petitioner Katherine Seif was allegedly injured on or about February 23, 1993 when she slipped and fell outside her apartment building which is designated as 2700 Randall Avenue, Bronx, New York. Petitioner served a Notice of Claim upon respondent the City of New York on or about May 24, 1993 and a statutory General Municipal Law § 50-h hearing was held on September 17, 1993. During the hearing, Ms. Seif testified that although the sidewalk in front of her "house" had been shoveled, the left side of the path had not been cleared well leaving a sheet of ice upon which she slipped and fell, injuring her shoulder.

On or about November 16, 1993, petitioner moved for leave to file a late notice of claim, asserting, inter alia, that it had "only recently" been discovered that the building was owned by the Housing Authority. The IAS court granted leave in a brief order holding, inter alia, that petitioner provided a valid excuse for the delay. The Housing Authority appeals and we now reverse.

While we are mindful of the fact that the IAS court has broad discretion to permit the late filing of a notice of claim, giving due consideration to the various statutory considerations set forth in General Municipal law § 50-e(5) (Matter of Feliciano v. New York City Hous. Auth., 188 A.D.2d 296, 590 N.Y.S.2d 491; Matter of Andrews v. Village of Sherburne, 140 A.D.2d 790, 527 N.Y.S.2d 662, lv. denied 72 N.Y.2d 807, 533 N.Y.S.2d 56, 529 N.E.2d 424), in this case we find that the IAS court abused its discretion.

Initially, we note that petitioner is required to provide an adequate excuse for the delay in filing the notice of claim (Chattergoon v. New York City Hous. Auth., 161 A.D.2d 141, 142, 554 N.Y.S.2d 859, affd. 78 N.Y.2d 958, 574 N.Y.S.2d 934, 580 N.E.2d 406; Pavone v. City of New York, 170 A.D.2d 493, 566 N.Y.S.2d 71; Barzaga v. New York City Hous. Auth., 204 A.D.2d 163, 612 N.Y.S.2d 122). Petitioner, however, has failed to do so and her attorney's affirmation that "[o]nly recently ... this office became aware that the owner of the premises was the New York City Housing Authority" amounts to nothing more than law office failure, i.e., to properly research what entity owned the property in the first instance.

The fact that the City of New York was properly and timely served is of no moment as the owner of the building, as we have already pointed out, could easily have been ascertained (Pavone v. City of New York, supra, at 493, 566 N.Y.S.2d 71; D'Andrea v. City of Glen Cove Public Schools, 143 A.D.2d 747, 533 N.Y.S.2d 456). In any event, no evidence is presented that the Housing Authority is an alter ego of the City of New York and...