Diaz v Coney Is. Hosp.
Annotate this CaseDecided on September 9, 2009
Supreme Court, Kings County
Sharon Diaz and Anthony Diaz, Plaintiff,
against
Coney Island Hospital and the City of New York, Defendant.(s)
2910/09
The petitioners are represented by Jay R. Viders, PLLC, by Jay R. Viders , Esq., of counsel, the defendants are resented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Angela R. Cruz, Esq., of counsel.
Robert J. Miller, J.
Petitioners Sharon Diaz (Diaz) and her husband Anthony Diaz, (hereinafter collectively referred to as "Petitioners") move pursuant to General Municipal Law §50-e, for an order granting them leave to file a late Notice of Claim against the New York City Health and Hospitals Corporation s/h/a of Coney Island Hospital ("HHC") arising out of Diaz' claims of personal injury.
The proposed Notice of Claim describes the nature of the claims for personal injuries "as a result of the negligence in the ownership, operation, control and maintenance of the public sidewalk of the New York City Health and Hospitals Corporation and/or the City of New York, its agents, departments, servants, employees or those acting on their behalf".
Petitioners were required to file a timely Notice of Claim against the HHC pursuant to General Municipal Law (GML) §50-e arising from an alleged incident on October 22, 2008 by January 20, 2009, which is within the ninety days required. The Petitioners filed the instant application for the late Notice of Claim on April 2, 2009, 72 days after the GML §50-e 90 day period had expired.
In this case, the Petitioners timely served the defendant City of New York (City) with a Notice of Claim on November 11, 2008 and a 50-h was held on January 7, 2009.
The HHC asserts that before the Court considers the criteria for allowing a late Notice of Claim that the application should be summarily denied because the Petitioners would not be able to sustain a claim against HHC as Petitioners' allegations arise out of the operation, management, maintenance and control of the public sidewalk and here Coney Island Hospital does not operate, manage, maintain or control the subject sidewalk or curb, nor did it do so at the time of the accident, as a matter of law, as Coney Island Hospital is occupying the property which belongs to an out of possession landowner, the City.
In considering the application for a late Notice of Claim, the merits of a claim ordinarily are not considered, however, where the proposed claim is patently without merit, leave to serve a late Notice of Claim should be denied. (Matter of Catherine G. v. County of Essex, 3 NY3d 175, [2004]). [*2]
Here, the Court does not have to review the alleged lack
of a legal basis to the claim against
HHC. The affirmation in opposition is submitted by an attorney without personal
knowledge of the facts. No documents are provided to the Court as to which entity, New York
City or HHC ,owns the premises that the sidewalk abuts. As such, the Court will review the
merits of the petition to file a late Notice of Claim against HHC.
The failure to serve the Notice of Claim 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 ]). However, 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]).
Petitioners' 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 HHC received actual notice of the facts constituting the claim 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 HHC, 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]).
To establish notice within the 90 day period, Petitioners rely on the hospital records which were completed by the Coney Island Hospital staff in the treatment of Diaz on the date of the accident. The hospital records state that "36 y/o lady here c pain in Rt ankle after she tripped & fell in a pothole @ CIH where she twisted an ankle (rt)". The HHC argues that courts have held that document or record evidence to establish knowledge on the part of the municipality must connect the occurrence with the alleged negligence and that knowledge on the part of the municipality must contain the essential facts of the claim. The HHC also relies on Caselli v New York , 105 AD2d 251, where the court found that "mere knowledge by a police officer or of a police department cannot be considered actual knowledge of the public corporation itself regarding the essential facts of the claim". However, here the Court finds that HHC received more than general information and that the information contained in the hospital reports provided HHC with sufficient knowledge of the nature of the claim of negligence, including the date, [*3]place, time and nature of injury to Cruz, as well as the specific reason for the fall i.e., that there was a "pothole @ CIH" (Coney Island Hospital).
The Court will next look to whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. The Court in Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008] when analyzing whether the municipality has been prejudiced by the delay in filing the Notice of Claim noted that:
"Of course, when the public corporation has
actual knowledge of the facts constituting the
claim, it may be easier for a claimant to meet
this burden (see Gibbs v City of New York, 22
AD3d 717, 719 [2005]). Indeed, 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" (Citations Omitted)
Here, the HHC had knowledge through the medical records of the nature of the injury and how it occurred. Therefore, the Court finds that HHC will not be prejudiced in defending the claim.
Accordingly, the application to serve a late Notice of Claim upon the Health and Hospitals Corporation s/h/a Coney Island Hospital is granted.
The foregoing constitutes the decision and Order of the Court.
Robert J. Miller
J.S.C.
September 9, 2009
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