Fishman v Town of Clarkstown
Annotate this CaseDecided on March 12, 2009
Supreme Court, Rockland County
Joel Fishman and BEVERLY FISHMAN, Plaintiffs
against
Town of Clarkstown and TOWN OF RAMAPO, Defendants.
11151/08
Fenster & Kurland LLP
Attorneys for Plaintiff
Robert A. Peirce & Associates
Attorneys for Defendant
Town of Clarkstown
Michael L. Klein Esq.
Town Attorney for Defendant Town of Ramapo
Alfred Weiner, J.
The following papers numbered 1 to 5, read on this application by Plaintiff for
an order pursuant to General Municipal Law §50-e(5) declaring that the Notice of Claim
filed by Plaintiffs with the Town of Clarkstown ("Clarkstown") be deemed timely filed or, in the
alternative, permitting Plaintiffs to file a Late Notice of Claim:
Upon the foregoing papers, it is ORDERED that Plaintiff's application is
disposed of as follows:
Although this application was improperly brought as a motion, the application will
be treated as a special proceeding for leave to serve a late notice of claim.
Between December 23, 2007 and December 25, 2007 Plaintiffs sustained property
damage as a result of flooding. Plaintiff's property is located in the Town of Ramapo and [*2]is virtually adjacent to the town line separating the towns of
Clarkstown and Ramapo. Plaintiffs contend, in substance, that improperly maintained storm
drains caused the flooding. A Notice of Claim filed with the Town of Ramapo was accepted and
the subsequently filed Notice of Claim was rejected as untimely by the Town of Clarkstown.
Plaintiffs have now moved for an order declaring that the Notice of Claim filed with
the Town of Clarkstown be deemed timely filed or, in the alternative, that an order be made
permitting Plaintiffs to file a late Notice of Claim.
Plaintiffs state their late filing should be excused because it was only at the May 7,
2008 "50-h Hearing" did they learn that liability for their property damage may lie, in whole or
in part, with the Town of Clarkstown.
Plaintiffs contend, among other things, that a letter dated December 28, 2007
regarding the flooding and sent from the Ramapo Superintendent of Highways to the owners of
an adjacent property, establishes that Clarkstown had actual and timely knowledge of their claim
since a copy of the letter was forwarded to it. As a result of the foregoing, they assert that
Defendant has suffered and will suffer no prejudice by the granting of the relief sought.
Defendant opposes the motion contending, in substance, that Plaintiffs failed to meet
their burden; that they offered no reasonable excuse for their failure to serve a timely notice of
claim and that they were substantially prejudiced by the delay since they lost their opportunity to
investigate the blockage and the resulting damage allegedly sustained by Plaintiffs.
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]; Williams v Nassau County Med. Ctr.,
6 NY3d 531, 814 N.Y.S.2d 580. Pursuant to General Municipal Law §50-e(5), the
court may, in its discretion, extend the time to serve a notice of claim. In determining whether to
permit service of a late notice of claim, the court must consider 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) whether 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) whether the delay would substantially prejudice the public corporation in
defending on the merits. General Municipal Law § 50-e[5]; Williams v Nassau
County Med. Ctr., supra.
Contrary to Plaintiff's assertions, the Court finds that the December 28, 2007, letter
from the Ramapo Superintendent of Highways does not establish Clarkstown's actual and timely
knowledge of their claim as claimed by Plaintiffs. In substance, the letter merely notifies the
adjacent property owner that the Town of Ramapo made attempts to clear the system and remedy
the "...major blockage..." in it. It neither expressly nor implicitly mentions Plaintiffs or their
claim.
The Court finds that Plaintiffs made an excusable error concerning the identity of the
public [*3]corporation against which their claim should be
asserted. Plaintiff's property is located in the Town of Ramapo and it is not unreasonable for
Plaintiffs to assume that the problem that gave rise to the flooding was an issue for the Town of
Ramapo.
The Court further finds that the delay in serving the Notice of Claim upon the Town
of Clarkstown did not substantially prejudice it in maintaining its defense since it appears that
the clean-up was completed long before the expiration of the period of time within which the
Notice of Claim was to be filed. Therefore, a timely served notice would not have affected
Clarkstown's opportunity to investigate the blockage and the damages it allegedly caused.
Accordingly, Plaintiff's petition for leave to serve a late notice of claim is granted.
The Notice of Claim received by the Town Clerk of the Town of Clarkstown and date stamped
June 24, 2008 is deemed served, as of that date.
Dated:New City, New York
March 12, 2009
E N T E R:
__________________________
HON. ALFRED J. WEINER
Justice of the Supreme Court
To:
Fenster & Kurland LLP
Attorneys for Plaintiff
Robert A. Peirce & Associates
Attorneys for Defendant
Town of Clarkstown
Michael L. Klein Esq.
Town Attorney for Defendant Town of Ramapo
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