Titus v City of New York
2012 NY Slip Op 30742(U)
March 22, 2012
Sup Ct, New York County
Docket Number: 100310/12
Judge: Barbara Jaffe
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SCANNED ON 312712012
SUPREME COURT OF THE STATE OF NEW YORK
- NEW YORK COUNTY
PAPERS N U M W
Notice of Motion/ Order to Show Cause - Affidavlts - Exhlbite
Answerlng Affldavlts - Exhiblta
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0 SUBMIT ORDER/ JUDG.
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Index No, 100310/12
Motion Seq. No.:
- against -
DECISION & JUDGMENT
THE CITY OF NEW YORK,
Stephen G. Bock, Esq.
Law Offices of Regina L. Darby
26 Broadway, 2 I " F1.
New York, NY 10004
Y ael Barbibay, ACC
Michael A. Cardozo
100 Church St.
New York, NY 10007
By order to show cause dated January 13,2012, petitioner moves for an order permitting
her to serve respondent City with a late notice of claim. On August 12, 201 1, petitioner was
injured when she allegedly tripped over uneven sidewalk grates in front of 60 Ann Street in
Manhattan (the premises). (Affirmation of Stephen G. Bock, Esq., dated Jan. 10,2012 [Bock
Aff.], Exh. A).
Petitioner claims that City acquired actual knowledge of her claim when emergency
medical service (EMS) employees responded to the scene and transported her to the hospital and
because the grates were covered and blocked off less than two weeks after her accident. She
alleges that her delay resulted from pursuing a claim against the premises owner, and that she
was informed on November 14,2011 by the owner's insurance carrier that City may own the
grates. (Id.,Exhs. B, E).
City denies that petitioner has a reasonable excuse for her delay, or that it had actual
knowledge of petitioner's claim absent proof that the EMS employees were employed by City or
that City blocked off the grates, and it denies that the EMS report afforded it notice of its alleged
negligence. City also claims that it is prejudiced by the delay absent an opportunity to conduct a
prompt investigation. (Affirmation of Yael Barbibay, ACC, dated Jan. 28,2012).
Pursuant to GML 5 50-a, in order to commence a negligence action against a
municipality, a claimant must serve a notice of claim upon the municipality within 90 days of the
date on which the claim arose. Pursuant to GML 4 SO-e, the court may extend the time to file a
notice of claim, and in deciding whether to grant the extension, it must consider, inter alia,
whether the municipality acquired actual knowledge of the essential facts constituting the claim
within the 90-day deadline or a reasonable time thereafter, whether the delay in serving the
notice of claim substantially prejudiced. the municipality in its ability to maintain a defense, and
whether the claimant has a reasonable excuse for the delay. (Grant v Nassau County Indus. Dev.
Agency, 60 AD3d 946,947 [2d Dept 20091; Powell v Ct ofNew Yo&, 32 AD3d 227 [ 1'' Dept
A municipality receives actual knowledge of the essential facts constituting a claim when
it acquires actual knowledge of the facts underlying the theory on which liability is predicated
(Grande v Ct of New York, 48 AD3d 565 [2d Dept 2008]), not merely knowledge of the facts
underlying the incident (Chattergoon v New York City Hous. Auth., 161 AD2d 141 [ 1st Dept
19901, lv denied 76 NY2d 875).
Here, absent any proof that the EMS employees were employed by City or that City
learned of the accident or received any information relating to it until petitioner served the
instant application, petitioner has not established that City received actual knowledge of her
claim within the 90 days after her accident or a reasonable time thereafter. (See Schoen v City o
New York, 86 AD3d 575 [2d Dept 201 11 [fact that EMS personnel were at accident scene
insufficient to impute knowledge of petitioner’s claim to City]; Taylor v County of Suflolk, 90
AD3d 769 [2d Dept 201 11 [police accident report did not give defendant actual notice of
negligence claim or allegation that defendant’s negligence caused accident]; Pineda v Ct of
New York, 305 AD2d 294 [ 1” Dept 20031 lpolice report did not indicate any causal connection
between plaintiffs injuries and any negligent acts by defendant]). Petitioner also offers no basis
upon which it may be inferred that City undertook repairs to the grates after her accident.
Although petitioner’s accident occurred on August 12,2011, she waited until receipt of
the insurer’s letter in November 20 1 1 before determining that City may be responsible for the
sidewalk grates, and she does not explain why she could not have ascertained it earlier on her
own. Thus, petitioner’s effort to investigate the identity of the entity that may own the. grates
cannot be deemed reasonable. (See Devivo v Town o f c a m e l , 68 AD3d 991 [2d Dept 20091
[petitioner did not set forth reasonable excuse for delay as failure to ascertain owner of property
was due to lack of diligence in investigating matter]; Bridgeview at Babylon Cove Homeowners
Ann., Inc. v Inc. Vil. ofBabylon, 41 AD3d 404 [2d Dept 20071 [no acceptable excuse shown
where petitioner failed to properly research boat’s ownership]; Jenkins v New York City Hous.
Auth., 29 AD3d 3 19 [ 1st Dept 20061 [error in ascertaining proper party to sue did not constitute
adequate excuse for delay in serving notice of claim]; Lug0 v New York City Hous. Auth., 282
AD2d 229 [2d Dept 20011 [as identity of property owner was easily ascertainable, delay not
excused]; Sefv City qflvew York, 2 18 AD2d 595 [ 1IfDept 19951 [no acceptable excuse shown
as petitioner failed to properly research which entity owned property]).
Moreover, despite learning in November 201 1 that City may be liable, petitioner did not
move for leave to serve a late notice of claim for another two months, approximately five months
after the accident, and as the alleged cause of the accident was a sidewalk defect, she has failed
to demonstrate that City was not prejudiced by the delay, especially as she asserts that repairs
were made to the grates shortly after her accident. (See Khalid v City ofNew York,91 AD3d 779
[2d Dept 20 121 [petitioner failed to establish City not prejudiced by delay given transitory nature
of curb defect and changed condition of accident site]; Gitis v City uflvew Yurk, 68 AD3d 489
Dept 20091, lv denied 14 NY3d 712  [court should not have granted application made
three months after expiration of 90-day deadline, and photographs revealed that repairs had since
been made to sidewalk and thus City did not have opportunity to inspect sidewalk in original
Accordingly, it is
ADJUDGED and ORDERED, that petitioner’s application for leave to serve a late notice
of claim is denied.
Barbara Jaffe, J
New York, New York
2 2 2QQ