Smith v. City of N.Y.

• Decision Date: 23 June 2014
• Docket Number: No. 20671/14.,20671/14.
• Citation: 997 N.Y.S.2d 101 (Table)
• Parties: Chris SMITH, Plaintiff(s), v. The CITY OF NEW YORK and The New York City Housing Authority, Defendant(s).
• Court: New York Supreme Court

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

Chris SMITH, Plaintiff(s)

v.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.

Opinion

MITCHELL J. DANZIGER, J.

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 medical evidence (Casale v. City of New York, 95 AD3d 744, 744 [1st Dept 2012] [“Petitioners failed to offer a reasonable excuse for not serving a timely notice of claim. Indeed, petitioners failed to submit any medical evidence supporting their assertion that the injured petitioner's physical condition prevented them from timely serving a notice of claim.”]; Mandia v. County of Westchester, 162 A.D.2d 217, 218 [1st Dept 1990] [“Petitioners failed to submit a medical affidavit by a physician or otherwise to substantiate their claim that the delay in service was due to physical incapacity.”] ).

While infancy-which tolls the statute of limitations (CPLR § 208 ), but does not toll the time within which to file a notice of claim (see generally, Harris v. City of New York, 297 A.D.2d 473 [1st Dept 2002] ; Ali v. Bunny Realty Corp., 253 A.D.2d 356 [1st Dept 1998] )-is a factor that the court should consider on an application for leave to file a belated notice of claim (Williams v. Nassau County Med. Ctr., 6 NY3d 531, 537–538 [2006] ). While it is now well settled that a plaintiff seeking leave to file a late notice of claim need not establish a nexus between his/her infancy and the delay in timely filing (id. at 538;Ali at 357), the court should nevertheless determine whether the infancy played a role in the failure to timely file a notice of claim (Williams at 538 [“A delay of service caused by infancy would make a more compelling argument to justify an extension. Conversely, the lack of a causative nexus may make the delay less excusable, but not fatally deficient. It all goes into the mix.”] ). Stated differently, infancy does not, in it of itself “compel the granting of a petition for leave to serve a late notice of claim” (Sparrow v. Hewlett–Woodmere Union Free School Dist., 110 AD3d 905, 905 [2d Dept 2013] ; Contreras v. 357 Dean Street Corp., 77 AD3d 604, 605 [2d Dept 2010), but can, if proffered as the excuse for the delay, militate in favor of finding a reasonable excuse for the delay (Williams at 538).

With respect to whether the municipal defendant received knowledge of the facts constituting the claim within 90 day of its occurrence or within a reasonable time thereafter, GML § 50–e (5) provides, in pertinent part, that the court shall consider, “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.” Actual knowledge means that the defendant acquired knowledge of the essential facts forming the basis of the negligence claim within 90 days of its occurrence, not simply knowledge that an accident occurred (Kim v. City of New York, 256 A.D.2d 83, 84 [1st Dept 1998] [Court held that knowledge that petitioner was injured when instructed by a teacher to move a large piece of plywood, was not tantamount to notice of petitioner's claim that respondents “were negligent in not providing petitioner with the mechanical means to move the plywood and otherwise in their supervision of petitioner's activities.”]; Chattergoon v. New York City Housing Auth., 161 A.D.2d 141, 142 [1st Dept 1990] [“What satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the claim (internal quotation marks omitted).]; Bullard at 450–451 [1st Dept 1986] ). Accordingly, that the municipal defendant has records in its possession demonstrating injury, is by itself insufficient to establish that it had actual knowledge of the claim within 90 days of its occurrence (Williams at 537 [“We disagree with plaintiff's suggestion that because defendants have medical records, they necessarily have actual knowledge of the facts constituting the claim. Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process.”]; Kelley v. New York City Health & Hosps. Corp., 76 AD3d 824, 827 [1st Dept 2010] ).

Lastly, with regard to prejudice, since the primary purpose of...