Shane v City of New York

[*1] Shane v City of New York 2008 NY Slip Op 52270(U) [21 Misc 3d 1128(A)] Decided on November 6, 2008 Civil Court Of The City Of New York, Richmond County Levine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 6, 2008
Civil Court of the City of New York, Richmond County

Michael Shane, Plaintiff,

against

City of New York, Defendant.



SCR 1817/07



A P P E A R A N C E S

Claimant: Michael C. Shane

3891 Van Duzer St. No.2A,

Staten Island, New York 10304

Defendant: The City of New York Corporation Counsel

100 Church Street 5th Floor

New York, New York 10007

Katherine A. Levine, J.

This case raises anew the issue of whether the Civil Court of the City of New York has the authority to grant an application to file a late notice of claim.

Plaintiff Michael C. Shane ("Shane" or "plaintiff") commenced this Small Claims action against the defendant City of New York ("City" or "defendant") for property damage caused to his car by a New York City Department of Sanitation truck . Plaintiff claims that on July 31, 2007, his vehicle was parked and unoccupied and was hit by a sanitation truck. Plaintiff was notified of this accident by a notice of claim form that the sanitation driver - Alex Rodriguez - placed on his windshield wiper as well as by the notice of claim form that the sanitation driver gave to a nearby restaurant owner, who in turn gave it to plaintiff. The notice of claim form filed by plaintiff, in addition to identifying the driver, set forth the license plate of the garbage truck and the insurance information.

The City moves for summary judgment or, in the alternative, dismissal, because plaintiff served a late notice of claim upon the City. Specifically, the City attaches as Exhibit "A" to its motion the "Claim against the City of New York , Vehicular Property Damage ("Claim") which plaintiff filed on October 31, 2007, ninety two days after the claim arose, and hence two days beyond the 90 day notice of claim limitation contained in General Municipal Law §50-e.

Plaintiff concedes filing the notice of claim two days late but contends that it was an oversight and that he got "confused" since the claim arose on July 31st and he had written down that the 90 days to file this claim somehow expired on October 31st.. He thereupon made an oral application before this court to file a late notice of claim and contended that such a request was reasonable since he was only 48 hours late in filing the claim.

The first issue, albeit not raised by the parties, is whether the Civil Court has jurisdiction [*2]to rule upon plaintiff's application to file a late notice of claim. General Municipal Law §50-e (7) provides that all application regarding leave to serve a late notice "shall be made to the supreme court or to the county court."This court follows the well reasoned and detailed decision of Judge Straniere, the presiding judge of this court, in Arvelo v. City of New York, 182 Misc 2d 101 (Civil Court, Richmond County) which, parenthetically, has not been reversed or negatively commented upon by any court.[FN1]

In Arvelo , Judge Straniere found that while"the statute on its face appears to prohibit an application" for the relief of filing a late notice of claim in Civil Court, "an examination of the underlying logic of the statute and its legislative history reveals that the Civil Court is, in fact, an appropriate forum for this redress" Id at 103. Under the precise language of §50-e, a litigant who resided outside of New York City and commenced an action in County Court could file for leave to file a late notice of claim in that same court, whereas a litigant in the City of New York who filed a suit in Civil Court would have to put all discovery and litigation on hold while he or his attorney traveled to Supreme Court solely for the purpose of the motion. This anomaly resulted in the most "onerous" burden being placed on the litigant who commenced his action in Civil Court but was compelled to seek a remedy in Supreme Court, which created "a disparity among litigants based solely on their basis of residence in New York State, which the Legislature had no rational basis for instituting"" Id. at 105. Judge Straniere then found that §50-e was unconstitutional as there was "no rational basis for the disparity of treatment or the imposition of

a greater burden of seeking redress in the Supreme Court for permission to file a late notice of claim on the litigants of Civil Court and more particularly, residents of New York City." 182 Misc 2d at 109. Judge Straniere therefore concluded that the Civil Court had the power to entertain claimant's motion to serve a late notice of claim." Id at 953-954 [*3]

Similarly, in Lurie v New York City Off. of Comptroller, 154 Misc 2d 950 (Civil Ct., NY Co.1992), the court held that General Municipal Law §50-e(7) should not apply to the Small Claims Part. While the requirement of serving a notice of claim is a matter of "substantive law" and therefore "cannot be waived under the relaxed procedural rules for the Small Claims Part, pursuant to CCA 1802 and 1804", Id at 953, a motion for permission to serve a late notice, and the filing of such late notice is merely a procedural requirement Id. " Requiring that a claimant in the Small Claims Part go to Supreme Court or County Court to obtain leave to serve a late notice of claim would fly in the face of the goals of the establishment of the Small Claims Part, given the considerably greater expense, more complicated procedure and longer time to process actions in the Supreme and County Courts." Id at 953.

It should also be noted that the purpose of the Small Claims Court is "to do substantial justice between the parties according to the rules of substantive law" and that the court " shall not be bound by rules of statutory provisions or rules of practice, procedure, pleading or evidence." NY City Civil Court Act §1804. The Legislature enacted these provisions in recognition of the fact that most litigants before the Small Claims Court are pro se and hence unfamiliar with the law." Resnick v. NYCHHC, supra , 161 Misc 2d at 158. The standard of substantial justice is " a fluid criterion, and substantial justice is found by turning the judicial face slightly away from the technical rule of substantive law." Siegel, Practice Commentaries, §1804.

Having determined that this court can entertain an application to file a late notice of claim, and taking into consideration the more relaxed standards present in the Small Claims Court, this Court now grants claimant's application to file a late notice of claim . Pursuant to General Municipal Law§ 50 -e(5), a court has discretion as to whether to grant leave to serve a late notice of claim , taking into consideration all relevant facts and circumstances, including whether " (1) the movant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in defending on the merits." Acosta v. City of New York, 39 AD3d 629, 630 ( 2d Dept. 2007). See, Mtr of Hicks v City of NY , 8 AD3d 566, 566-567(2d Dept. 2004). However, in making this determination, the "the presence or absence of any one factor is not determinative." Chattergoon v. N.Y.C Housing Auth., 197 AD2d 397 ( 1st Dept. . 1993); Mtr of Morris v County of Suffolk, 88 AD2d 956, 957 ( 2d Dept. 1992), and the absence of a reasonable excuse for the delay is not fatal. 197 AD2d at 398.

Here, the movant has met the three criteria listed above. He has, in a less than crisp manner, articulated a reasonable excuse for being two days late in filing the notice of claim : that

he confused the 90 day deadline with three months and hence marked October 31st instead of

October 29th as the last day upon which his notice of claim must be served. The court also finds it incredible for the City to argue that a two day delay would substantially prejudice it in defending on the merits. Finally, even assuming arguendo this court were to credit the City's disclaimer of actual knowledge of the facts underlying the claim within 90 days, Section 50-e 5 contains the language "within the time specified ... or a reasonable time thereafter" This court finds that a two day delay in the city receiving actual notice of claim falls well within the phrase "reasonable time thereafter".

In sum, given the fact that the City was notified of this claim within a reasonable time after 90 days, that the movant has a reasonable excuse for the two day delay, and that the City will not be substantially prejudiced by this deminimus delay, this Court grants movant's application to file a late notice of claim and deems that October 31st claim to constitute the operative late notice of claim. The City's motion to dismiss is denied and the parties are directed to proceed to trial on January 8,2008.

This constitutes the Decision and Order of this court.

Hon. Katherine A. Levine

Dated: November2008 Footnotes

Footnote 1:In contrast to the dearth of opinions criticizing this decision, the Appellate Term negatively commented on another well reasoned and detailed decision arising from Richmond County Civil Court - Resnick v. NYCHHC, 161 Misc . 2d 156 ( Civil Ct. Richmond Co. 2004) - which held that procedural requirements, such as the Notice of Claim provision, need not be strictly applied to suits brought by plaintiffs appearing in the Small Claims Parts of the Civil Court. See. Ragosto v. Triborough Bridge & Tunnel Auth., 173 Misc 2d 560 (App. Term, 1st Dept. 1997) where the court held that the mandatory requirements of General Municipal Law §50-e may not be dispensed with merely because a plaintiff chose to pursue his cause of action in Small Claims Part of Civil Court and commented that Resnick should not be followed due to its "anomalous and legislatively unintended result". See also, Poulmentis v. Town of Southhampton, 1 Misc 3d 128A, 781 NYS2d 627 (App. Term, 2d Dept. 2003) holding that the requirement of filing and serving a notice of claim, as embodied in §50-e, is applicable to small claims actions brought against municipalities .