Phillipe v City of New York

[*1] Phillipe v City of New York 2005 NY Slip Op 51123(U) Decided on April 8, 2005 Supreme Court, New York County Ling-Cohan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 8, 2005
Supreme Court, New York County

ABRAHAM J. PHILLIPE, Plaintiff,

against

THE CITY OF NEW YORK, U.S. TOW, INC., U.S. DREDGING CORP. and STAR SECURITY, Defendants



108099/04

Doris Ling-Cohan, J.

Background

Plaintiff brought the instant action to recover the value of his automobile, which was impounded by the defendant City of New York (City) on or about May 8, 2003, due to his failure to pay parking violation fines (Affirmation of Joel S. Stuttman, Esq. in Support of Motion [Stuttman Aff.], Ex. C). After plaintiff paid the fines, he sent his son to the City's storage lot on or about May 19, 2003 to retrieve his car, and it could not be located. Plaintiff contacted his current attorney in February 2004 regarding this matter. In the reply, plaintiff explained further that, shortly after his vehicle was lost, he became bedridden as a result of a stroke and he remains bedridden to date (Reply Affidavit of Abraham Phillipe [Phillipe Reply Aff.], at ¶ 6). In addition, plaintiff explained that he had difficulty retaining an attorney in connection with this matter and the attorney whom he initially retained failed to follow through with the matter (id, at ¶ 7).

The action was commenced against the City and other defendants on or about May 27, 2004. Approximately two months later, on or about July 26, 2004, plaintiff brought the instant [*2]application to serve a late notice of claim.

Discussion

When deciding whether to grant an application for leave to file a late notice of claim, courts consider various factors, including the following: (1) whether the petitioner has demonstrated a reasonable excuse for the failure to timely serve a notice of claim; (2) whether the public corporation acquired actual knowledge of the essential facts constituting the claim within ninety days after the claim arose or a reasonable time thereafter a factor that should be accorded great weight, (see Justiniano v. New York City Hous. Auth. Police, 191 AD2d 252 [1st Dept 1993]); and (3) whether the delay substantially prejudiced the municipality's ability to defend its case on the merits ( see General Municipal Law § 50-e[5]; Diallo v. City of New York, 224 AD2d 339 [1st Dept 1996]; Strauss v. New York City Tr. Auth., 195 AD2d 322 [1st Dept 1993]; Gelles v. New York City Hous. Auth., 87 AD2d 757 [1st Dept 1982]). No one single factor is determinative (see Matter of Gerzel v. City of New York, 117 AD2d 549, 551 [1st Dept 1986]; Rechenberger v. Nassau County Med. Ctr., 112 AD2d 150, 152 [2d Dept 1985]; Matter of Morris v. County of Suffolk, 88 AD2d 956, 957 [2d Dept 1982], affd 58 NY2d 767 [1982]).

Plaintiff has provided a reasonable excuse for a significant portion of his delay of over one year in making the instant application to serve a late notice of claim. Although plaintiff did not contact his current attorney until February 2004, he has indicated by reply affidavit that he has been bedridden as a result of a stroke which he suffered shortly after the vehicle was lost. In addition, in the reply, plaintiff explains that he had difficulty finding an attorney who did not ask for a large retainer, and the attorney he initially retained failed to follow through. While his current attorney did not immediately seek to file a late notice of claim, nevertheless, the absence of an acceptable excuse is not necessarily fatal to an application to serve a late notice of claim (see Diallo v City of New York, 224 AD2d at 340; Richardson v New York City Tr. Auth., 210 AD2d 38 [1st Dept 1994]; Chattergoon v City of New York, 197 AD2d 397 [1st Dept 1993]).

Rather, courts will consider all factors listed in GML § 50-e(5), particularly whether the municipality acquired knowledge of the essential facts constituting the claim within the 90 day statutory period, when determining whether to grant an application to serve a late notice of claim (id.; Matter of Russell v City of New York, 2003 NY Slip. Op. 50872) (Sup. Ct. NY County March 31, 2003[ [Ling-Cohan, J.]). Upon considering all of the relevant factors, the Court grants plaintiff's application to serve a late notice of claim.

For purposes of determining this application, it is significant that in this matter the City has failed to rebut the issues raised by the petitioner's reply. By interim order dated December 22, 2004, this Court provided an opportunity to respondent City to submit a sur-reply, as petitioner has attached as an exhibit to his reply a police report (Reply, Exhibit A) and affidavits indicating that (1) petitioner was sick and (2) that the police were called to investigate the disappearance of the car, and a police report filed (see Phillipe Reply Aff. And Reply Affidavit of Antonia Santiago). The reply affidavits and annexed exhibits raise new issues, namely that the City received notice through the specific police report and that plaintiff stated, by affidavit, that he has been bedridden as a result of a stroke which he suffered shortly after the vehicle was lost and has had difficulties in finding an attorney who did not ask for a large retainer, and that the attorney he initially retained failed to follow through. The interim order also specifically provided: "Failure to comply with this interim order will mean dismissal/granting of motion on [*3]default as appropriate". The City has failed to submit a sur-reply to rebut these new issues.

Accordingly, this Court has reviewed the submitted papers with respect to this application and determines that the petition should be granted in view of the City's failure to rebut the plaintiff's position that the police report provided notice to the City of the facts constituting the claim and plaintiff's offer of a reasonable excuse for his delay in making the instant application.

The Court notes that the police were specifically called to investigate the disappearance of plaintiff's car from the storage lot in which the City placed the vehicle, after the City allegedly impounded his vehicle, at the direction of the City, pursuant to a judgment against plaintiff for failure to pay certain parking violations. Although the judgment was paid, and thus plaintiff was entitled to retrieve the impounded vehicle from the City, the City never provided the vehicle. The police were called to investigate the disappearance and a "Verification of Crime/Lost Property" police report was compiled on May 19, 2003 and the report was "verified by" PAA McLean on August 12, 2004 (Reply, Ex. A).

The purpose of the notice of claim provision in GML § 50-e(5) "is to protect the municipality against unfounded claims and to assure it 'an adequate opportunity to explore the merits of the claim while information is still readily available.' " (see Camacho v. City of New York, 187 AD2d 262 [1st Dept 1992] [citing Teresta v. City of New York, 304 NY 440, 443 [1952]). "However, it should not operate as a device to defeat the rights of persons with legitimate claims.... Indeed, '[the statute]...is remedial in nature and so should be liberally construed.'" (Camacho, 187 AD2d at 263 [citing Matter of Santana v City of New York, 183 AD2d 665 [1st Dept 1992]).

Here, the police, having been called in their investigative capacity, had ample "opportunity to explore the merits of the claim while information is still readily available" (see Camacho v. City of New York, 187 AD2d 262 [1st Dept 1992] [citing Teresta v. City of New York, 304 NY 440, 443 [1952]) as they were called to investigate the disappearance of the car. Indeed, the police report indicates that plaintiff's vehicle was lost as a result of "grand larceny", indicating that a criminal investigation may have taken place (Reply, Ex. A). Accordingly, this matter is analogous to cases involving allegations of false arrest and imprisonment and malicious prosecution, where courts have held that the records of the investigation and prosecution of the criminal charges at issue are sufficient to impute knowledge of the facts constituting the claim to the City (see, eg ; Nunez v City of New York, 307 AD2d 218 220 [1st Dept 2003]; Diallo v City of New York, 224 AD2d at 340; Grullon v City of New York, 222 AD2d 257, 258 [1st Dept 1995]; Justiniano v New York City Hous. Auth. Police, 191 AD2d at 252; Matter of Russell v City of New York, 2003 WL 21146884*2)

The Court further observes that the City's initial opposition is based solely on counsel's affirmation, not based upon personal knowledge, claiming speculatively that the City is "prejudiced" but fails to attach an affidavit from any investigator who attempted to investigate the incident but was prevented from doing so due to the delay in making an application to serve a late notice of claim (Affirmation of Michael Chadirjian, Jr., Esq. in Opposition, at ¶¶ 10-12). The City, as indicated above, has failed to rebut the plaintiff's reply papers, which raise the issue of the City's actual notice of the facts constituting the claim, as a result of the investigation, which was evidenced by the attached police report, entitled "Verification of Crime/Lost Property" [Reply , Exhibit A]. [*4]

Given that the police were called to investigate, and both the operator of the lot and the tow truck operator, were undoubtedly either City employees, or agents of the City, records were likely kept as to the car, which would aid the City in defending the claim, if necessary. Here, the police were called in their investigative capacity to investigate the disappearance of plaintiff's car, which can be distinguished from situations in which the police merely give an assist to a victim of a slip and fall, in which only a police aided report is filed and no investigation performed. Thus, the City having been called to the scene in this capacity, had "an adequate opportunity to explore the merits of the claim while information is still readily available. " (see Camacho v. City of New York, 187 AD2d 262 [1st Dept 1992] [citing Teresta v. City of New York, 304 NY 440, 443 [1952]).

Accordingly, the City acquired actual knowledge of the facts constituting plaintiff's claim, based upon the police investigation of the theft of his car and the report prepared by the police department (see Soreca v New York City Hous. Auth., 177 AD2d 254 [1st Dept 1991]; Matter of Nayyar v Board of Educ. of City of New York, 169 AD2d 628, 629 [1st Dept 1991]; Parco v City of New York, 160 AD2d 581, 582 [1st Dept 1990]; Swensen v City of New York, 126 AD2d 499 [1st Dept 1987]; De Modna v City of New York, 126 AD2d 435 [1st Dept 1987]. See also Johnson v New York City Tr. Auth., 278 AD2d 83 [1st Dept 2000]; Gamoneda v New York City Bd. of Educ., 259 AD2d 348 [1st Dept 1999]; Chattergoon v New York City Hous. Auth., 197 AD2d 397). Under these circumstances, the City cannot claim that it was prejudiced by plaintiff's delay in making the instant application to serve a late notice of claim. Therefore, plaintiff's application is granted.

Accordingly, it is

ORDERED that plaintiff's application to serve a late notice of claim is granted; and it is further

ORDERED that, within thirty days of entry, plaintiff shall serve upon all parties a copy of this decision, order and judgment, with notice of entry; and it is further

ORDERED that the proposed notice of claim annexed to plaintiff's application as an exhibit shall be deemed timely served, upon service of a copy of this decision, order and judgment, with notice of entry, on respondent City of New York.

In granting this application, the Court does not pass on the relative merits of plaintiff's claim (see Weiss v City of New York, 237 AD2d 212 [1st Dept 1997]).

This constitutes the Decision and Order of the Court.

Dated:

Doris Ling-Cohan, JSC

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