Matter of Andreyev v Town of Babylon

[*1] Matter of Andreyev v Town of Babylon 2005 NY Slip Op 51519(U) [9 Misc 3d 1113(A)] Decided on July 7, 2005 Supreme Court, Suffolk County Werner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2005
Supreme Court, Suffolk County

In the Matter of the Application of Eileen Andreyev and GREGORY ANDREYEV, for leave to serve a late notice of claim the TOWN OF BABYLON and COUNTY OF SUFFOLK, Petitioners,

against

Town of Babylon and COUNTY OF SUFFOLK, Respondents



05-05751



John P. Gianfortune, Esq., Attorney for Petitioners

265 Sunrise Highway, Suite 30, Rockville Centre, NY 11570

DENNIS M. COHEN, ESQ., Babylon Town Attorney

200 East Sunrise Highway, Lindenhurst, NY 11757

CHRISTINE MALAFI, ESQ., Suffolk County Attorney

100 Veterans Memorial Highway, Hauppauge, NY 11788-0099

Mary M. Werner, J.

ORDERED that the application by petitioners seeking leave to serve a late notice of claim against respondents Town of Babylon and County of Suffolk is denied.

On February 28, 2004, petitioner Eileen Andreyev was injured when she tripped and fell while walking down a step located in front of a hair salon located at 1044 Little East Neck Road, West Babylon, New York. The step leads from a walkway in front of the hair salon and other adjoining stores to a sidewalk adjacent to Little East Neck Road. The sidewalk allegedly was built in 2000 as part of a construction project funded by respondent Suffolk County to ease traffic congestion on Little East Neck Road. It appears from the evidence in the record that the sidewalk is located on property either sold or dedicated by Mr. Zito to the Town of Babylon as part of the Little East Neck Road renovation project. The property is owned by Joseph Zito and the hair salon, known as Salon Di Moda, is a tenant at the property.

In November 2004, petitioner commenced an action against Mr. Zito, Salon Di Moda, Inc., and Louise Pantazis to recover damages for the injuries she allegedly sustained as a result of her fall. Her husband, petitioner Gregory Andreyev, sued derivatively for loss of services. The action, assigned index number 04-27163, alleges that Eileen Andreyev fell "off the nearly hidden, defective and dangerous step located immediately in front of the main entrance" to Salon Di Moda. It alleges that the defendants were negligent, among other things, in allowing a step to exist immediately in front of the premises, and "in causing, allowing and permitting the aforementioned step to be and remain in the same color as the sidewalk beyond it, thereby making it unreasonably difficult for those leaving the premises to perceive the elevation change created by the step in question."

On January 17, 2005, petitioners' counsel allegedly learned from Salon Di Moda's insurance carrier that the step in front of the hair salon was created by Suffolk County when the adjacent sidewalk was constructed in 2000. Shortly thereafter, on January 26, 2005, petitioners served respondents with a notice of claim. The notice alleges respondents' negligence, inter alia, "in creating a step and its drop off five feet in front" of the hair salon, in failing to warn of the step, and "in making the drop off to the sidewalk below virtually and unreasonably imperceptible to those exiting the aforesaid premises and walking toward the street." Both the Town of Babylon and Suffolk County rejected the notice of claim was rejected as untimely. Subsequently, by order to show cause dated March 11, 2005, petitioners commenced the instant proceeding for leave to serve respondents with a late notice of claim.

To commence a tort action against a municipality, a claimant must serve a notice of claim within 90 days of the alleged injury (General Municipal Law §50-e[1][a]). A court may, in its discretion, extend the time to serve a notice of claim (General Municipal Law §50-e[5]; Fuentes [*2]v County of Nassau, 15 AD3d 346, 788 NYS2d 865 [2d Dept 2005]; Matter of Hicks v City of New York, 8 AD3d 566, 778 NYS2d 725 [2d Dept 2004]). In determining whether to permit the service of a late notice of claim, a court must consider, among other things, whether the petitioner has a reasonable excuse for failing to serve a timely notice of claim, whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or within a reasonable time thereafter, whether the claimant was an infant or incapacitated, and whether the delay would substantially prejudice the municipality in its defense on the merits (see, General Municipal Law §50-e[5]; Bovich v East Meadow Pub. Library, 16 AD3d 11, 789 NYS2d 511 [2d Dept 2005]; Pappalardo v City of New York, 2 AD3d 699, 768 NYS2d 660 [2d Dept 2003]; Matter of Nieves v Girimonte, 309 AD2d 753, 765 NYS2d 64 [2d Dept 2003], appeal dismissed 1 NY3d 591, 776 NYS2d 219 [2004]). One factor that should be accorded great weight is whether the municipality received actual knowledge of the facts constituting the claim in a timely manner (see, Matter of Alexander v Board of Educ. for Vil. of Mamaroneck, 18 AD3d 654, 794 NYS2d 687 [2d Dept 2005]; Matter of Jasinski v HB Ward Tech. School, 306 AD2d 347, 760 NYS2d 676 [2d Dept 2003]; Matter of Canty v City of New York, 273 AD2d 467, 711 NYS2d 750 [2d Dept 2000]). "What satisfies the statute is not knowledge of the wrong but notice of the claim. The municipality must have notice or knowledge of the specific claim and not general knowledge that a wrong has been committed" (Matter of Sica v Board of Educ. of City of New York, 226 AD2d 542, 543, 640 NYS2d 610 [2d Dept 1996]; see, Matter of Brown v County of Westchester, 293 AD2d 748, 741 NYS2d 281 [2d Dept 2002]).

Further, it is well settled that where a party seeking leave to file a late notice of claim relies upon accident or incident reports, strict scrutiny should be employed by the court to determine whether such reports in fact actually provide sufficient notice to the public corporation of the claim against it (see, Matter of Crocco v Town of New Scotland, 307 AD2d 516, 762 NYS2d 685 [3d Dept 2003]; Matter of Leiblein v Clark, 207 AD2d 348, 615 NYS2d 437 [2d Dept 1994]; Caselli v City of New York, 105 AD2d 251, 483 NYS2d 401 [2d Dept 1984]). Generally, knowledge of a police department or a police officer cannot be considered actual knowledge of the public corporation of the essential facts of a claim (Caselli v City of New York, supra , at 255, 483 NYS2d 401; see, Matter of Amin v City of New York, 243 AD2d 467, 663 NYS2d 93 [2d Dept 1997]; Matter of Pelella v City of New York, 215 AD2d 207, 626 NYS2d 171 [1st Dept 1995]; Matter of Shapiro v County of Nassau, 208 AD2d 545, 616 NYS2d 786 [2d Dept 1994]). In addition, knowledge of an accident or occurrence by a municipality's police or fire department generally cannot be imputed to another public or municipal corporation (see, Matter of Martinez v New York City Hous. Auth., 250 AD2d 686, 672 NYS2d 898 [2d Dept 1998]; Matter of Russ v New York City Hous. Auth., 198 AD2d 361, 603 NYS2d 338 [2d Dept 1993]).

Here, it is undisputed that respondents did not have notice of the facts constituting petitioner Eileen Andreyev's negligence claim within 90 days of the accident or a reasonable time thereafter (see, Matter of Lennon v Roosevelt Union Free School Dist., 6 AD3d 713, 775 NYS2d 537 [2d Dept 2004]; Pappalardo v City of New York, supra ; Saafir v Metro-North [*3]Commuter R.R. Co., 260 AD2d 462, 688 NYS2d 224 [2d Dept], lv denied 93 NY2d 816, 697 NYS2d 563 [1999]; cf., Matter of Andrew T.B. v Brewster Cent. School Dist., 18 AD3d 745, 795 NYS2d 718 [2d Dept 2005]; Matter of Bitetto v City of Yonkers, 13 AD3d 367, 785 NYS2d 745 [2d Dept 2004]; Matter of Nieves v Girimonte, supra ; Matter of Ramirez v City of White Plains, 306 AD2d 488, 761 NYS2d 522 [2d Dept 2003]). Contrary to the conclusory allegation by petitioners' counsel, the mere fact that a Suffolk County police officer responded to the accident scene does not satisfy the requirement that the municipality have actual notice of the essential facts of petitioner's negligence claim (see, Matter of Aliberti v City of Yonkers, 302 AD2d 456, 755 NYS2d 406 [2d Dept 2003]; Meehan v City of New York, 295 AD2d 581, 744 NYS2d 484 [2d Dept 2002]; Matter of Guiliano v Town of Oyster Bay, 244 AD2d 408, 664 NYS2d 314 [2d Dept 1997]; Caselli v City of New York, supra ; cf., Miranda v New York City Tr. Auth., 262 AD2d 199, 694 NYS2d 352 [1st Dept 1999]). Further, petitioners failed to provide an adequate explanation for the delay in filing a notice of claim (see, Matter of Nieves v Girimonte, supra ; Seif v City of New York, 218 AD2d 595, 630 NYS2d 742 [1st Dept 1995]) or to demonstrate that Eileen Andreyev's alleged physical incapacitation was of such extent and duration that she was prevented from filing the claim within the 90-day period (see, Matter of Kliment v City of Syracuse, 294 AD2d 944, 741 NYS2d 819 [4th Dept 2002]; Matter of Embery v City of New York, 250 AD2d 611, 671 NYS2d 984 [2d Dept 1998]). Finally, there is no evidence rebutting respondents' assertion that their ability to investigate the facts surrounding the accident and to defend themselves against the negligence claim would be substantially prejudiced by the extensive delay between the time the claim arose and the time petitioners commenced the instant proceeding (see, Callum v State of New York, 282 AD2d 590, 723 NYS2d 389 [2d Dept 2001]; Lemma v Off Track Betting Corp., 272 AD2d 669, 707 NYS2d 276 [3d Dept 2000]; Walker v New York City Tr. Auth., 266 AD2d 54, 698 NYS2d 460 [1st Dept 1999]; Matter of Landa v City of New York, 252 AD2d 525, 675 NYS2d 377 [2d Dept 1998]; Matter of Gilliam v City of New York, 250 AD2d 680, 673 NYS2d 172 [2d Dept 1998]; Moran v New York City Hous. Auth., 224 AD2d 257, 637 NYS2d 698 [1st Dept 1996]).

Accordingly, petitioners' application to serve a late notice of claim is denied and the petition is dismissed.

Dated:

J.S.C.

X FINAL DISPOSITION NON-FINAL DISPOSITION