Smith v. City of N.Y., No. 20671/14.

CourtUnited States State Supreme Court (New York)
Writing for the CourtMITCHELL J. DANZIGER, J.
Citation997 N.Y.S.2d 101 (Table)
PartiesChris SMITH, Plaintiff(s), v. The CITY OF NEW YORK and The New York City Housing Authority, Defendant(s).
Decision Date23 June 2014
Docket NumberNo. 20671/14.

997 N.Y.S.2d 101 (Table)

Chris SMITH, Plaintiff(s)
The CITY OF NEW YORK and The New York City Housing Authority, Defendant(s).

No. 20671/14.

Supreme Court, Bronx County, New York.

June 23, 2014.



In this action for alleged personal injuries precipitated by a dangerous condition existing on the public sidewalk abutting real property, plaintiff moves seeking an order, inter alia, granting him leave to interpose a belated notice of claim upon defendants, deeming the same timely served nunc pro tunc, as if it had been served within 90 days of the aforementioned accident's occurrence. Defendant THE NEW YORK CITY HOUSING AUTHORITY (N.Y.CHA) opposes the instant motion averring, inter alia, that plaintiff's excuse for failing to timely serve his notice of claim upon it fails as a matter of law.

For the reasons that follow hereinafter, plaintiff's motion is denied, and in the interests of judicial economy, this Court sua sponte dismisses the instant action against all defendants.

The instant action is for alleged personal injuries. Plaintiff's notice of claim, which he served upon defendants on December 27, 2013, alleges that on August 22, 2013, he tripped and fell on the pathway/crosswalk located at 365 East 183rd Street, Bronx, NY. Plaintiff further alleges that he was caused to trip and fall by reason of a metal pipe-like fixture existing at the aforementioned location, which pipe constituted a hazard. Plaintiff contends that defendants who owned and maintained the location herein were negligent in allowing the pipe to exist and that negligence caused him to sustain injury.

Pursuant to General Municipal Law (GML) § 50–e, the timely filing of a notice of claim is a statutory precondition to the initiation of personal injury suits against a municipality (O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358 [1981] ).GML § 50–e(a1 ) reads

In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply and be served with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate.

Thus, a party has 90 days from the date the claim arises to file a notice of claim and when a notice of claim is served beyond the required ninety-day period, without leave of court, it is deemed a ity (Wollins v. New York City Bd. of Educ., 8 AD3d 30, 31 [1st Dept 2004] ; De La Cruz v. City of New York, 221 A.D.2d 168, 169 [1st Dept 1995] ; Van der Lugt v. City of New York, 36 A.D.2d 915, 915 [1st Dept 1971] ; Chikara v. City of New York, 10 A.D.2d 862, 862 [2d Dept 1960], appeal dismissed 8 N.Y.2d 1014 [1960] ).

However, when a party fails to timely file a notice of claim GML § 50–e(5), allows a late filing with leave of court. GML § 50–e(5) reads

In determining whether to grant [a claimant] the extension the court shall consider, in particular, whether the public corporation or its attorney, or its insurance carrier, acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one, or within a reasonable time thereafter. The court shall consider all other relevant facts and circumstances including: whether the plaintiff was an infant or mentally or physically incapacitated ... and whether the delay substantially prejudiced the public corporation in maintaining its defense on the merits.
The court, therefore, has discretion to allow a late filing after considering, whether (1) the claimant has a reasonable excuse for the failure to serve a timely notice of claim; (2) the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after it arose, or a reasonable time thereafter; and (3) whether the delay would substantially prejudice the municipality maintaining a defense on the merits (Jusino v. New York City Housing Authority 255 A.D.2d 41, 47 [1st Dept 1999] ; Gerzel v. City of New York, 117 A.D.2d 549, 550 [1st Dept 1986] ; Morrison v. New York City Health and Hospitals Corp., 244 A.D.2d 487, 487 [2d Dept 1997] ).

With respect to a reasonable excuse for the delay in timely serving a notice of claim, generally, “in order to obtain leave to serve a late notice of claim under subdivision 5 of section 50–e of the General Municipal Law, a party must give a satisfactory explanation for his delay” (Rodriguez v. City of New York, 86 A.D.2d 533, 533 [1st Dept 1982] ; see also Sarti v. City of New York, 268 A.D.2d 285, 285 [1st Dept 2000] [Petitioner's application for leave to file a late notice of claim denied when her reason for the failure to timely file was a lacked of knowledge of her son's death. Court rejected her excuse insofar as “nowhere [did] petitioner actually describe her attempts to investigate.”]; Aviles v. New York City Health and Hospitals Corp., 172 A.D.2d 237, 238[1st Dept 1991] ). Thus, the absence of a reasonable excuse for the delay in timely filing a notice of claim requires denial of the application (Aviles at 238), as does the wholesale failure to explain the delay (Perkins v. New York City Health and Hospitals Corp., 167 A.D.2d 150, 151 [1st Dept 1990] ). Law office failure has been deemed an unreasonable excuse for failure to timely file a notice of claim (Seif v. City of New York, 218 A.D.2d 595, 596 [1st Dept 1995] ; Bullard v. City of New York, 118 A.D.2d 447, 450 [1st Dept 1986] ). Moreover, while physical incapacity is a cognizable excuse for failure to file a timely notice of claim, any such incapacity must be established through the use of...

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