Matter of Islam v City of New York

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Matter of Islam v City of New York 2012 NY Slip Op 30427(U) February 24, 2012 Supreme Court, New York County Docket Number: 107749/2010 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 212712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTV PART PRESENT: IN= Index Number ; 107749/2010 ISLAM, PARVIN A. NO. MOTION DAlX I ] 11 L IL] W CITY OF NEW YORK \ MOTION Iu1. NO. Sequrnes Number : OM MOTION UAl. NO. REAROUMENTFECONBIDERAT~ON /- T r following pawn, numbmrod 1 to h - , w i n nwi on thim motion -t B Notloo o i Motlonl Ordn to Show Caumo &lSW@hg AffldOW - Wlbb R~IC - Affldavttr - ,Mibite ... kpwng Aflklrvttr Coss-Motion: 0 Yes d o Upon tha formgoing papmn, tt k o d m d that thk motion , j &*id C . FEB 27 2012 NEW YORK COUNTY CLERK S OFFICE Check one: 0 FINAL DISPOSITION Check If approprlate: 0 DO NOT POST 0 SUBMIT ORDER/JUDG. NON-FINAL DISPOSITION REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: IAS PART 6 bo\ b rl -------------------------- X In the Matter of the C a m of PARVlN A, I S M , li Petitioner, Index No. 107749110 -against- The City of New York, New York City Department of Education, FE0 27 2012 Petitioner moves for an order granting her leave to renew, or alternatively requc, a prior application (Motion Scqucncc Number 003) that she brought by order to show CBW, which was marked filly submitted on M y 17,201 1, and which rwultcd in this court's decision and order a dated May 20,201 1 (the "May 2011 Decision*')). A procedural history of this matter is warranted. This is putitioner'a fourth application Elated to her attempt to obtain leave of court to sewe a late notice of claim on respondents The City of New Y r and New York City Department of Education (collectively the ok "City"), In her first application on or about June 11,2010, petitioner filed a motion for an order granting her leave to scwc a late notice of claim. Such applications must be brought by notice of petition. ~ p u v. Roowelt U M Free $ A.D.3d 713,714 (2d Dep't e 6 2004). Howuver, petitioner had never actually fllcd a petition to commence the special proceeding. Additionally, she had not shown that she had scwcd the motion on the City in accordance with C,P.L.R. 403(c) and 3 11 Accordingly, the court denied petitioner's first application but granted [* 3] her lave to renew her application upon the filing of a petition and demonstretion of Strvice that complied With C.P.L.R. 09 403(c) and 3 1 1 (the First Decision ). In her second application,by order to ahow cause filed on M r h 1 1,201 1, petitioner ac moved for l a v e to renew her first application; sha included a pctition with her order to show cause. The order to show cause required that it and the underlying papm be personally served upon the City. The court denied petitIontr a atcond application btcausc she failed to demonstrate that she served the City in accordance with the order to show cause. In her third application, by order to show c a w filed on May 5,201 1, petitioner again sought leave to rcncw her first application; again the order to show cause required personal service of it and the supporting p a p a upon the C t ;and again, on the return date, pttitioner failed to iy provide proof of service that the City had bean personally scwcd with the papers. Morwver, petitioner still had never formally filed a petition as directed by the court in the First Decision. Accordingly, in the May 2011 Decision, the court denied petitioner s third application. In the instant application, petitioner move8 for leave to reargue and leave to renew her prior motion seeking l a v e to SOIVU a late noticuof claim against the City. Petitioner initially sets forth that she failed to formally file a petition because she believed that a petition served wt an ih order to show cause (as in her second application) need not be first filed w t the county clerk s ih office. She avers that the putition has sincu bean filed in the county clerk s office. She asks the court to disregard her initial failure to file the petition and permit the late filing of the petition. Petitioner -2- [* 4] also maintains that on May 10,201 1, she parsonally ~crvcd City wt the May 201 1 order to the ih show cause, however she failed to present proof of personel senrice on the return date of May 17, 20 1 1, bccawe the attorney who appeared on the return &to did not have an affidavit of service. She now anncxes an aMdavit of sarvica indicating that service of her petition and the May 201 1 order to show cw waa personally served on the City on May 10,201 1. a In seeking laave to reargue Motion SquenccNumbcr 003, pttitioner argues that the court overlooked or miaapprchended the facts or law becausc-afkr the motion was marked filly a submitted on M y 17,201 1, without petitioner having offmd an affidavit of service attesting to personal service-the court failed to give petitioner an opportunityto present her affidavit of seervice confirming personal service before deciding the motion just tbrec days later on May 20,201 1. In sttklng leave to renew Motion Sequence Number 003,petitioner argutsthat her instant presentation of the affidavitof personal sewice of her third application should sum as a "new fact" not offered on the prior motion that would change the prior detennination. Bascd upon the affirmation of petitioner's counsel m to the alleged service of the order to show cause from Motion Saquenca Number 003, to the extant that the petitioner seeks renewal, said application is granted. Upon renewal, as the City has not claimed any prejudice, the court deems the verified petition dated M r h 3, ac 2011 (as contalned In pctitioncr's second application) filed with the court as of March 1 I , 201 1, the date that petitioner filed the order to show c a w for her second application, which is the carlieat time considered Bled with thc court. that the petition could have been C.P.L.R. 8 2001. F e r , the court notes that the Ct docs not iy -3- [* 5] deny being personally sewed with petitioner sorderto show causeand underlyingpapers on Motion SequenceNumber 003. Accordingly, the court d m sthe City a having been personally w e d with the patition on May 10,2011, which is the carlitat time that petitioner could be coneidcrcd to have effected personal sewice of the petition on the City. Oiven the instant determination, whereby the petition has, for the first tIme, been deemed filed with the court, and the Ct has k e n deemed t have been penonally scrvtd with the iy o petition, the Ct shall be permitted to interpose a formal response to the petition. A determination iy on the merits of the pethion shall be held in abeyance pending the City s response. Accordingly, it is hereby ORDEREDthat patitionor smotion for leave to renewher petition to file a late notkc of claim Is granted to the extent act forth above; and it is further ORDERED that a determination on the m r t of the petition shall be held i eis n abeyance pending a formal response to the petition f o The Ct of New York and New York City rm iy Department of Education; and it is fhthcr ORDERED that The City ofNew York and New York Ct Department of Education iy shall have twenty (20) days from the date of mrvico of a copy of this order with notiw of entry or until April 13,2012, whichever date is d i m , to serve and file its answers and objections i point n of law or otherwlsa move with respect to the petition; and it is ft.trther 4 [* 6] ORDERED that all papers shall be mhlmablc to Part 6, Courtroom 345 at 60 Centre Street, New York, New York; and it i further s ORDERED that oral argument on the putition Is achedulcd for Tuesday, April 24, 2012, at 9:30 am. Dated: ay ,2012 ENTER: JOAN .LOBI J&C. NEW W R K COUNTY CLERKS OFFICE -5-

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