Akhmechet v City of New York

[*1] Akhmechet v City of New York 2005 NY Slip Op 50334(U) Decided on March 10, 2005 Supreme Court, Kings County Partnow, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 10, 2005
Supreme Court, Kings County

Bella Akhmechet as Administratrix of the Estate of Tabel Barbabash, deceased, et ano., Petitioners,

against

The City of New York, Respondent.



36018/04

Mark I. Partnow, J.

Upon the foregoing papers, petitioners' application, made by order to show cause, for leave to serve a late notice of claim against respondent the City of New York (the City) is denied.

Petitioner's decedent, Tabel Barbabash,[FN1] died on August 25, 2003 after jumping from a window in her third-story Brooklyn apartment, and while she was allegedly under the care and supervision of a home health care attendant employed by the Association for Services for the Aged, an Human Resources Administration (HRA) subcontractor.

Petitioner admits to having failed to serve a Notice of Claim upon the City within 90 [*2]days of the accrual of her claim as required by General Municipal Law (GML) § 50-e (1) (a).[FN2] The instant application is made almost 15 months following the incident and only days prior to the expiration of the applicable statute of limitations for commencing an action against respondent or bringing an application for leave to file a late notice of claim (see GML §§ 50-e [5] and 50-i).

According to petitioner, her delay in filing a notice of claim was excusable, as she was purportedly unaware that decedent received home health aid from a City agency or subcontractor; she failed to retain counsel within 90 days of the incident date; and her prior counsel neglected to move the court for permission to serve a late notice of claim. Petitioner further asserts that the City had actual knowledge of her claim and would not be prejudiced by the late filing.

The City opposes the application on the grounds that petitioner fails to present any

compelling circumstance as would warrant the granting of leave to serve a late notice of claim; petitioner's ignorance of the law and controlling statute and her prior counsel's alleged failures constitute insufficient excuse for her extended delay; the City was without actual knowledge of petitioner's claim; and the City has been substantially prejudiced in its ability to defend the proposed action against it.

In exercising its discretion whether to permit service of a late notice of claim, the court must focus on whether the movant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, whether the municipality or public corporation 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 Rabanar v City of Yonkers, 290 AD2d 428, 429 [2002]; Christoforatos v City of New York, 285 AD2d 622 [2001]; Hobgood v New York City Housing Authority, 253 AD2d 555, 555-556 [1998]; Pruden v New York City Board of Education, 235 AD2d 426 [1997]).

As to the instant matter, petitioner's explanations fail to demonstrate a valid and acceptable excuse for her approximate 15 month delay. Petitioner does not allege any significant physical or mental disability which prevented her from filing a timely notice and, instead, alleges that she was, in the first instance, unaware of the statutory notice of claim requirements and did not know that the City may be a proper defendant with respect to her purported claims.

Petitioner's claimed ignorance of the statutory notice requirements is an unacceptable excuse for her failure to serve a timely notice of claim (see Jackson v City of New Rochelle, [*3]227 AD2d 483 [1996]; Ragin v City of New York, 222 AD2d 678 [1995]; Magnotti v City of New York, 206 AD2d 534 [1994]).

Further, although an error concerning the identity of the government entity to be served can be excused where a prompt application is made after discovery of the error (see Farrell v City of New York, 191 AD2d 698, 699 [1993]), petitioner's actions herein were neither prompt nor reasonable and cannot be excused, as she admittedly learned of the City's involvement through its alleged subcontract in March 2004, but took no further action until approximately seven months later, when the instant leave application was made (see Santana v Western Regional Off-Track Betting Corp., 2 AD3d 1304, 1305 [2003]; Serrano v New York City Housing Authority, 197 AD2d 694, 696 [1993]; cf. Flynn v Town of Oyster Bay, 256 AD2d 341 [1998]; Farrell, 191 AD2d at 699). Petitioner's reliance upon Gherardi v City of New York (294 AD2d 101 [2002]) is misplaced, since in that action, the petitioner acted within a reasonable time to correct his error after discovering same (id.).

Equally unavailing is petitioner's assertion that her extensive delay should be excused by her prior counsel's failure to promptly act to serve, or seek leave to serve, late notice of claim upon the City. Law office failure is not a legally acceptable excuse for the failure to timely comply with GML § 50-e or to comply within a reasonable time thereafter (see Kittredge v New York City Housing Authority, 275 AD2d 746 [2000]; see also Belenky v Nassau Community College, 4 AD3d 422, 423 [2004]; Baglivi v Town of Southold, 301 AD2d 597, 598 [2003]; Valestil v City of New York, 295 AD2d 619 [2002]; Serrano, 197 AD2d at 696).

Nor has petitioner made any showing that the City acquired actual knowledge of the essential facts constituting petitioner's claim within 90 days from the accrual of said claims. "[T]he purpose of the statutory notice of claim requirement (GML § 50-e) is to afford the public corporation an 'adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available'" (Caselli v City of New York, 105 AD2d 251, 252 [1984], quoting Teresta v City of New York, 304 NY 440, 443 [1952]). Here, the City correctly argues that decedent's emergency room records, another hospital record and an ambulance report proffered by petitioner did not constitute adequate notice to the City of the essential facts underlying petitioner's negligent supervision claims and did not afford the City sufficient opportunity to promptly investigate the incident and assess the merits of petitioner's claims.

Petitioner asserts that the City must have been placed on actual notice of the claim by virtue of decedent's hospital records, since the hospital decedent was transported to is "a NYC run hospital." The City, however, asserts that the hospital in question is owned and managed by the New York City Health and Hospitals Corporation (HHC). HHC is not an agency of the City and is, instead, a separate and distinct entity over which the City has no control (see Skelton v City of New York, 176 AD2d 664 [1991] [plaintiff, an HHC employee, was not entitled to file late notice of claim against the City for injuries sustained at hospital,

inasmuch as the City had no control over HHC and could not be deemed to have had actual [*4]notice of the accident by virtue of information contained in workers' compensation claims forms], citing Brennan v City of New York, 88 AD2d 871 [1982]). Petitioner has, accordingly, not shown that decedent's medical records were in the City's possession (cf. Hendershot v Westchester Medical Center, 8 AD3d 381, 382 [2004]).

In any event, it is well-settled that where the party seeking leave to serve a late notice of claim relies upon accident or incident reports, "strict scrutiny" should be employed by the court to determine whether the reports actually provided sufficient notice to the public corporation of the claim against it (Caselli, 105 AD2d at 257). It is further noted that knowledge of an accident or occurrence by a municipality's police or fire department cannot generally be imputed to another public or municipal corporation for notice of claim purposes (see Russ v New York City Housing Authority, 198 AD2d 361, 362 [1993]; Serrano, 197 AD2d at 696; Pagan v New York City Housing Authority, 175 AD2d 114, 115 [1991]), and the mere fact that personnel from the City's Fire Department, Police Department or Emergency Medical Services reported to the scene of an accident and prepared a report is insufficient to impute the requisite knowledge of petitioner's claims to the City (see Vitali v City of New York, 205 AD2d 636 [1994]; McLoughlin v City of New York, 178 AD2d 193, 194 ["where, as here, the facts upon which the municipality's liability is predicated are not discernable from the accident report, actual knowledge will not be imputed to the municipality"]).

The hospital records and FDNY ambulance report proffered by petitioner merely describe the circumstances surrounding the incident (i.e., that decedent jumped or fell from a third-story window) and note that decedent was accompanied to the hospital, by her "aide" or "home health aid[e]." Said records do not report that the home health care attendant was employed by the City or its subcontractor (see McLoughlin, 178 AD2d at 194 [fire department's accident report insufficient to impute actual knowledge to City where it failed to indicate that building was owned by City]), or that the incident was in any manner caused by the attendant, and make absolutely no connection between decedent's "accident," injuries and death and the underlying facts purported by petitioner to constitute the attendant's alleged negligent supervision of decedent, or the City's alleged responsibility therefor (Rabanar, 290 AD2d at 429; see Ocasio v New York City Health and Hospitals Corp., 14 AD3d 361 [2005] [actual notice not established by medical records which provide no indication of a causal connection between plaintiff's injuries and acts of negligence on defendant's part]; Potts v City of New York Health and Hospitals Corp., 270 AD2d 129 [2000] [medical records in defendant's possession did not afford notice of the facts constituting plaintiff's claim]; Negron v New York City Health and Hospitals Corp., 262 AD2d 217 [1999] [same]; see also Doherty v City of New York, 251 AD2d 368, 369 [1998] [fire department member injury report insufficient notice to City]; Resto v City of New York, 240 AD2d 499, 501 [1997] [neither fire department nor police accident report provided City with adequate notice of claim by furnishing essential facts constituting claim]; Zimmerman v City of New York, 161 AD2d 591, 593 [1990] [ambulance report of petitioner's fall and [*5]

injury "woefully inadequate to establish that the City ever 'acquired actual knowledge of the essential facts constituting the claim'"]).

In sum, the court finds that the proffered documents did not provide the City with actual notice of petitioner's negligent supervision or other claims and, if providing notice at all, merely provided notice of a suicide or accident involving decedent.

Petitioner's assumption that it was "highly probable" that the home health care attendant, an apparent employee of the subcontractor, was required to file an incident report of the accident is an improper conclusion, based upon mere speculation, and insufficient herein (see Rios v City of New York, 180 AD2d 801, 802 [1992] [petitioner improperly relied upon assumption that "some" pertinent ambulance report must exist "in the City hierarchy," since an assumption about what records might or might not exist does not "operate[] to fulfill the purposes for which a notice of claim is required"]).

Finally, the mere reporting of an accident by an employee does not establish conveyance of the report to a person with the duty to investigate (see Levette v Triborough Bridge & Tunnel Authority, 207 AD2d 330). Here, petitioner fails to assert that an incident report, if any such report exists, was forwarded to the City or is within the City's exclusive possession and could not be obtained from the subcontractor or by other means (cf. Cruz v Westchester County Health Care Corp., 9 AD3d 460 [2004]).

Petitioner has also not demonstrated that her delay has not substantially prejudiced the City in its opportunity to investigate the incident and defend against petitioner's claim on its merits (Belenky, 4 AD3d at 423; Baglivi, 301 AD2d at 598; Kittredge, 275 AD2d at 747).

Where, as here: (1) actual knowledge has not been shown; (2) petitioner's unjustified delay has precluded a prompt investigation and accurate reconstruction by the City of the accident and of the circumstances which actually precipitated the accident (including witness observations or other evidence of the actual suicide attempt or fall, decedent's mental state and the apartment's condition); (3) the City has been essentially crippled in its ability to obtain witness statements while memories are still fresh; and (4) there is no indication as to whether the home health care attendant is still employed by the subcontractor or the subcontract relationship still exists, petitioner has failed to refute the City's argument, inter alia, that "the sheer passage of time" has significantly prejudiced the City in its ability to defend petitioner's negligent supervision and other claim on their merits (Brown v County of Westchester, 293 AD2d 748, 749 [2002]; see also del Carmen v Brentwood Union Free School District, 7 AD3d 620 [2004]; Corrales v Middle Country Central School District, 307 AD2d 907, 908 [2003]; Price v Board of Education of City of Yonkers, 300 AD2d 310, 311 [2002]; Valestil, 295 AD2d at 619; Sheff v County of Westchester, 279 AD2d 632 [2001]; Ryder v Garden City School District, 277 AD2d 388, 389 [2000]; Dunlea v Mahopac Central School District, 232 AD2d 558, 560 [1996]; Albanese v Village of Floral Park, 128 AD2d 611, 613 [1987]).

Petitioner's application is accordingly denied. As a timely filing of a notice of claim is a condition precedent to the commencement of a tort claim against respondent (see GML [*6]§ 50-e [1] [a]; Perry v City of New York, 238 AD2d 326, 327 [1997]; Thomas v Town of Oyster Bay, 190 AD2d 731 [1993]), the failure to satisfy the condition requires dismissal of petitioners' action.

The foregoing constitutes the decision, order and judgment of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1:Petitioner Bella Akhmetchet makes the herein application individually and on behalf of Tabel Barbabash, as Mrs. Barbabash's daughter and the administratrix of her estate.

Footnote 2:Petitioner fails to assert the date on which she was appointed representative of decedent's estate (see GML § 50-e [1] [a] ["in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate]).