Robinson v Board of Educ. of City of the City School Dist. of the City of N.Y.

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Robinson v Board of Educ. of City of the City School Dist. of the City of N.Y. 2012 NY Slip Op 30429(U) February 7, 2012 Supreme Court, Nassau County Docket Number: 00744/11 Judge: Joel K. Asarch 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. ------------ --------- ------ ----- ---------- -- -- ---- ------ - ------ ---- - )( - - -- -------- -- --- -- -- ---- ----- -- -- ---- -- ----- -------- --------- - [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: PART 13 CYNTHIA ROBINSON Plaintiff - against - DECISION AND ORDER Inde)( No: 00744/11 BOARD OF EDUCATION OF THE CITY SCHOOL Motion Sequence No: 001 & 002 DISTRICT OF THE CITY OF NEW YORK, Original Retur Date: 10- 16- Defendant. PRESENT: HON. JOEL K. ASARCH Justice of the Supreme Court. The following named papers numbered 1 to 6 were submitted on these two Motions on November 2011 : Papers numbered Notice of Motion and Affirmation (Seq. 1) Affidavit in Opposition Notice of Motion , Affirmation and Affidavit (Seq.. Affrmation in Opposition The motion by defendant The Board/Deparment of the City of New York slha Board of Education ofthe City School District of the City of New York (hereafter defendant or the Board) for an order pursuant to CPLR 3211 (a )(7) dismissing the verified complaint on the ground that plaintiff did not timely file a notice of claim pursuant to General Municipal Law 50-e , or in the alternative for an order pursuant to CPLR 504(3) and 510(3) changing the venue of this action to Queens County is denied with respect to dismissal and granted without opposition with respect to the change [* 2] of venue. The motion by plaintiff Cynthia Robinson for an order declaring the notice of claim or about September 29 , 2010 timely fied nunc pro tunc fied on is granted and it is so declared. The County Clerk of the County of Nassau is directed to transfer the file in this matter to the Clerk of the Supreme Cour in Queens County. This is an action for personal injuries allegedly sustained by plaintiff Cynthia Robinson New York City teacher , on Januar 21 2010 at appro)(imately 8:00 a. m. ,a in classroom 1- 302 of , New Public School 70 , which is located at 30- 45 42 Street , Long Island City, County of Queens York. Plaintiff alleges that when she was entering the classroom , she tripped over a garbage bin and was caused to fall. A notice of claim was filed on or about September 29, 2010 , eight months after the claim accrued. General Municipal Law ~ 50-e requires that a notice of claim be fied within ninety days after the claim arises. This notice of claim is a condition precedent to bringing a tort claim against a municipality (O' Brien v. is one City of Syracuse 54 NY2d 353 (1981)). The requirement of notice " of the safeguards devised by law to protect municipalities against fraudulent and stale claims for injuries to person and propert" and " is designed to afford the municipality opportunity to make an early investigation of the claim while the facts surounding the alleged claim are stil ' (Adkins fresh' " City of New York 43 NY2d 346 350 (1977)). Plaintiff avers that the defendant had actual notice of her accident by way of a written Comprehensive Injur Report which was completed on the day of the accident , Januar 21 , 2010. An employee of defendant also completed a Written Statement Form the same day. On March 23 2010 a New York City Deparment of Education Division Human Resources Form was also [* 3] completed , indicating all the necessar information regarding plaintiff s identity and the natue and time of the accident. Subsequent notice was also provided with respect to plaintiff s three month leave due to her injures. Plaintiff also alleges that defendant's representatives wrongly advised her that her only remedy was her Line of Duty Injury Benefits , and that she could not sue. She avers the defendant misled her regarding her rights. Plaintiff contends that the foregoing constitute sufficient grounds for leave to fie a notice nunc pro tunc of claim the essential facts constituting the claim (Heiman , that defendants " acquired actual knowledge of v. City of New York 85 AD2d 25 , 28 (1 sl Dept 1982)), and that therefore defendant was not prejudiced by her delay. She also avers that defendant's erroneous legal advice delayed commencement of her action and filing the notice of claim and that this constitutes a reasonable e)(cuse for her delay. Defendant does not address plaintiff s contentions regarding actual knowledge and misleading advice. Rather , defendant contends that the Cour has no discretion to grantplaintiffs application because the one year and ninety day statute oflimitations has expired (Zimmerman City of New York 161 AD2d 591 (2d Dept 1990)). The Cour rejects defendant's argument , finding it without legal merit. Plaintiff commenced this action on Januar the notice of claim was fied 18 2011 , within the limitations period , and after with defendant. Although the notice of claim was fied outside the 90 day period of General Municipal Law ~ 50-e , the action itself was timely. When a claim is interposed , the statute of limitations stops runing (CPLR 203(a); McKinney s Consolidated Laws of New YorkAnotated , Practice Commentaries , C203 :2A - Statute of Limitations Stops Runing Upon Filing in Supreme Cour.... Vincent Ale)(ander , p 184 (2003)). [* 4] Thus , plaintiff s application to approve the notice of claim the one year ninety day period (cf. Mastandrea v. Iazzetta nunc pro tunc State v. in this action is not outside 105 Misc.2d 567 , State 57 AD2d 679 (3d Dept 1977)). In 571 (N. Ct.Cl. 1980); Iazzetta a cause of action for malicious prosecution was timely interposed for puroses of the statute oflimitations , but not as to subdivision (3) of section 10 of the Court of Claims Act , which requires that a claim or notice of intention be fied within ninety days of accrual. The cour in reasoned that the interposition of a timely Iazzetta claim tolls both the statute of limitations and section 10 of the Cour of Claims Act , and that this interpretation " is in accord with the purose of the statute of limitations which is to foreclose stale claims, but not to punish litigants for technical defects in pleading (Iazzetta , supra at p 572). Accordingly the Cour finds the statute of limitations was tolled upon interposition of plaintiffs claim on Januar 18 2011 and does not constitute a defense to this application (see also v. Mastandrea State 57 AD2d 679 (3d Dept 1977) (" Since we conclude that the claim for malicious prosecution is not time- bared , the question of whether leave should have been granted to file a late claim is rendered moot" Defendant's authority fails to support its contention that the Cour is without discretion consider the application for nunc pro tunc Pierre relief. In was held to have erred in deeming plaintiff Kerby Pierre tunc v. City of New York the Supreme Cour s notice of claim timely served only because he had made no application for such relief. " (T)he Supreme Court erred in nunc pro deeming the notice of claim insofar as asserted on behalf of Kerby Pierre timely served tunc nunc pro in the absence of a motion for such relief' (Pierre Dept 2005)). Clearly the issue could have been City of New York 22 AD3d 733 , 734 (2d considered on the merits had the plaintiff made application , as plaintiff here has done. Rather than being precluded from considering plaintiffs )( [* 5] claim, the authority submitted supports this Cour' s determination that decision whether to grant leave rests in this Cour' s " 711 (2d Dept 2001), Ivapp den 97 NY2d 602 sound discretion exercise of discretion serve notice of claim over five years after claim accrued" , under the circumstances , the (Henry Aguilar 282 AD2d affirmed denying leave to emphasis supplied)). The circumstances considered to approve leave include Cynthia Robinson s fiing of the notice of claim and service of process within the one year and ninety days of accrual to defendant shortly after the claim arose , defendant' , actual notice s failure to raise the late notice defense in its answer to alert plaintiff of its intention to raise the defense , defendant' s failure to move to dismiss within one year and ninety days , and most significantly, the interposition of the claim before the time e)(pired , thus halting the ruing of the statute. Accordingly, after due deliberation , it is ORDERED , that plaintiff s motion for an order declaring the notice of claim September 29, 2010 timely fied nunc pro tunc is granted, fied on or about and defendant's motion for an order dismissing the complaint on the ground that plaintiff did not timely fie a notice of claim is denied; and it is furter ORDERED , that the venue of the above entitled action be and is hereby changed from the County of Nassau to the County of Queens; and it is fuher ORDERED, that upon the entry ofthis Order , the County Clerk of the County of Nassau shall forthwith deliver to the County Clerk of the County of Queens all papers filed in the above entitled proceeding and the County Clerk of the County of Queens shall assign a new index number thereto; and it is furher ORDERED , that all subsequent proceedings be conducted in the Supreme Cour Queens as if such jurisdiction had been designated as the original venue. , County of [* 6] The foregoing constitutes the Decision and Order of the Court. Dated: Mineola, New York Februar 7 2012 Copies mailed to: Roach Bernard , PLLC. Attorneys for Plaintiff Michael A. Cardozo , Esq. Corporation Counsel Attorneys for Defendant ENTERED FEB 1 0 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE

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