Castillo v City of New York
Annotate this CaseDecided on August 4, 2009
Supreme Court, Kings County
Dora Castillo, Petitioner,
against
The City of New York, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION and WOODHULL MEDICAL MENTAL HEALTH CENTER AUXILIARY, INC., Respondents.
29423/08
The petitioner is represented by Adam L Shapiro and Associates, P.C. by Adams L. Shapiro, Esq., of counsel,
The respondents are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Jay Y. Kim, Esq., of counsel.
Robert J. Miller, J.
Petitioner Dora Castillo moves pursuant to General Municipal Law §50-e, for an order granting her leave to have her pro se notice of claim deemed timely served nunc pro tunc or for leave to file a late Notice of Claim against the City of New York (City) , New York City Health and Hospitals Corporation (HHC) and Woodhull Mental Health Center Auxiliary, Inc. (Woodhull) arising out of her claim of negligence.
The proposed Notice of Claim describes the nature of the claims for personal injuries as a result of the petitioner having slipped and fallen on a liquid substance in the hospital hallway of Woodhull.
Service of a Notice of Claim is a condition precedent to the commencement of a tort action against a municipality. (Clayton Industries, Inc. V City of Newburgh, [17 AD3d 309 [2d Dept 2005]. The failure to serve the notice within ninety (90) days makes it a nullity. (Laroc v City of New York , 46 AD3d 760 [2d Dept 2007], Matter of White v New York City Housing Authority, 38 AD3d 675[2d Dept 2007] , Maxwell v City of New York , 29 AD3d 540 [ 2d Dept 2006 ]).
Petitioner was required to file a timely Notice of Claim pursuant to General Municipal Law (GML) §50-e arising from the alleged incident which occurred on September 25, 2007 by December 24, 2007. Petitioner sought leave to file the late Notice of Claim on October 31, 2008 which is more that ten (10) months after the ninety (90) day period expired. [*2]
Petitioners application as against the City of New York cannot be sustained as the City is an out of possession landowner that does not operate, manage, maintain or control the property of Woodhull Hospital where plaintiff is alleged to have fallen. As a matter of law, the City cannot be held liable for plaintiff's injuries. (Scantlebury v New York City Health and Hosps. Corps., 4 NY3d 606 [2005], Bender v New York City Health and Hosps. Corp., 38 NY2d 662 [1976].) Leave to file a late notice of claim as against the City would be patently meritless (Cathrine G. V County of Essex, 3 NY3d 175 [2004]) and at the initial oral argument of the petition the Court indicated to Counsel for Castillo it would not exercise its discretion to allow a filing of a late notice as against the City.
Petitioner claims that she served a pro se Notice of Claim upon Woodhull by regular mail at the New York City Comptroller's office located at 1 Centre Street and attaches a copy of what is labeled as a Personal Injury Claim Form to the petition. The Claim form is dated 9/16/07. The Court notes that the form indicates immediately under the the title that "Claim must be filed in person or by registered or certified mail at the NYC Comptroller's Office at 1 Centre St....It must be notarized..."
However, even if the Court were to accept the improper method of service by regular mail, it is well established that the City and HHC are separate entities for the purpose of serving a Notice of Claim. Filing a notice of claim against the HHC at the Comptroller's office is not proper service as against HHC.
The Court of Appeals in Scantlebury v New York City Health and Hospitals Corporation, 4 NY3d 606 [2005], addressed the issue of whether the GML's "saving provision" applied to a case where the plaintiff failed to serve the appropriate municipality, the New York City Health and Hospitals Corporation with a timely notice of intention to commence an action, a statutory precedent to suit. Plaintiff argued on appeal that the GML § 50-e (3) savings provision should apply since she served a timely notice of claim on the Comptroller of the City and a GML 50-h hearing was held. The Court of Appeals in Scantlebury stated:
"...our decisions respecting the former version of the
savings provision as well as the current version's
legislative history demonstrate that section 50-e (3)
(C) was intended to cure improper methods of service,
such as service by ordinary mail, not service on the
wrong public entity (Adkins v City of New York, 43
NY2d 346, 350-351 [1977]." (Emphasis added)
Therefore, petitioner's application to have the Notice of Claim that was served pro se by the petitioner deemed timely served nunc pro tunc upon HHC and Woodhull is denied.
The Court will next consider the application to accept the application for leave to [*3]file a late notice of claim as against HHC and Woodhull.
A Court in its discretion may extend the time under GML § 50-e to serve a Notice of
Claim. In exercising its discretion, the Court must focus on whether the movant has
demonstrated a reasonable excuse for its failure to file a timely Notice of Claim, whether the
municipality acquired actual knowledge of the essential facts constituting the claim within ninety
(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. (Acosta v City of New York, 39 AD3d 629 [2nd Dept., 2007],
Rabanar v City of Yonkers, 290 AD2d 428 [2nd Dept 2002], Christoforatos v City of
New York, 285 AD2d 622 [2nd Dept 2001], Hobgood v New York City Housing
Authority, 253 AD2d 555 [2nd Dept 1998]).
Petitioner asserts that there is a reasonable excuse for delay because she attempted to serve a Notice of Claim pro se. However, courts have not accepted that ignorance of the law serves as a valid excuse for failure to file a Notice of Claim (Astree v New York City Transit Authority, 31 AD3d 589 [2d Dept 2006], Gofman v City of New York, 268 AD2d 588 [2d Dept 2000], Saafir v Metro-North Commuter R. Co. [ 2d Dept 1999]). Furthermore, it is clear that petitioner retained counsel within a month of her accident, as counsel for petitioner attaches correspondence with Woodhull dated October 12, 2007 demanding the name and policy number of Woodhull's insurance carrier. Therefore, failure to serve a timely notice of claim on the proper entity and in a proper way would be law office failure which does not constitute a reasonable excuse. (Astree v New York City Transit Authority, 31 AD3d 589 [ 2d Dept 2006], Matter of King v New York City Transit Authority, 274 AD2d 482 [2d Dept 2000].)
Petitioner's application fails to set forth any facts or details which would demonstrate a reasonable excuse as to why petitioner failed to file a timely Notice of Claim. However, in determining whether to permit the filing of a late Notice of Claim, the presence or absence of any one factor under GML§ 50-e is not determinative, and the absence of a reasonable excuse for the delay is not necessarily fatal. (Nardi v County of Nassau, 18 AD3d 520 [2nd Dept 2006]). Consequently, the Court will consider whether the respondents HHC and Woodhull received actual notice of the facts constituting the claims within ninety (90) days from its accrual or a reasonable time thereafter. Actual knowledge of the essential facts of the claim must have been acquired by the respondents, not just knowledge of the occurrence. (Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008], Casias v City of New York, 39 AD3d 681 2d Dept 2007]).
Here, the Court examined the proffered documents which were the hospital record made at the time the petitioner fell and was injured. The Court has carefully reviewed the records to see if the documents would put the respondents HHC and Woodhull on notice as to the theory or theories of claims asserted i.e. that the respondents were negligent because they had negligently left liquid on the hall floor which was alleged to have caused the petitioner's fall. (Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d [*4]Dept 2008].) However, the hospital records indicate that the petitioner fell in the hospital but there is no record to indicate that the petitioner fell on a "liquid substance" or from any other cause that would lead to the conclusion that HHC and Woodhull had notice of the essential facts or the theory of the claim.
Lastly, the Court considered whether the respondents HHC and Woodhull would be
prejudiced by a 78 day delay in service of the Notice of Claim. The Court of Appeals has
recently observed that "proof that the defendant had actual knowledge is an important factor in
determining whether the
defendant is substantially prejudiced by such a delay", Williams v Nassau County Med. Ctr.,
6 NY3d 531, 539 [ 2006]. The petitioner has not demonstrated to the Court that Woodhull
and HHC received any knowledge of the essential facts underlying the asserted claims within the
eleven months from the date of incident to the service of the petition. Therefore, the Court finds
that there would be prejudice.
Accordingly the petition to file a late Notice of Claim for the claims is denied.
The foregoing constitutes the decision and Order of the Court.
_______________________
Robert J. Miller
J.S.C.
August 4, 2009
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