Matter of Brooks v Town of N. Hempstead

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Matter of Brooks v Town of N. Hempstead 2012 NY Slip Op 31354(U) May 8, 2012 Supreme Court, Nassau County Docket Number: 17003/11 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: LA. PART 13 In the Mater of the Application of Inde)( No: 17003/11 SHERRY BROOKS, Petitioner - against - TOWN OF NORTH HEMPSTEAD DECISION AND ORDER Motion Sequence No: 001 Original Retu Date: 12- 22- Respondent. PRESENT: HON. JOEL K. ASARCH, Justice of the Supreme Court. The following named papers numbered 1 to 5 were submitted on this Notice of Motion on March 2012: Papers numbered Order to Show Cause , Affirmation and Affidavit Affirmation in Opposition Reply Affrmation This proceeding by the petitioner , Sherr Brooks , for an Order pursuant to General Law 50-e(5), granting her leave to serve a late Notice of Claim upon the respondent Municipal , Town of North Hempstead is decided as follows. Briefly, this action arises out of a trip and fall accident that took place on September 24 at or about 4:00 p. m. when the petitioner , while crossing the street at 2010 Prospect Avenue and Maplewood Drive in Westbur, New York , allegedly was caused to step into a hole in the street resulting in serious personal injuries. She claims that her consequent fall to the ground was a result of the dangerous and defective condition. [* 2] On December 22 , 2010 , petitioner served Notices of Claim upon the County of Nassau Town of Hempstead and the Incorporated Vilage of Westbury. , the Subsequently, on September 27, 2011 , a 50- h hearing was held. In support of the instant application , counsel for the petitioner states that at her muncipal law hearing, petitioner s testimony provided specific information as to the location of the accident and that it was at that point that he determined that the occurence took place at or near two adjoining towns , to wit: the Town of Hempstead and the Town of North Hempstead. Accordingly, on December 2011 petitioner served a Notice of Claim upon the Town of North Hempstead. Said Notice of Claim was rejected by the Town. With this application dated December 7 , 2011 , petitioner seeks leave to fie and serve a late Notice of Claim upon the Town of North Hempstead. In opposition to the motion, the Town of North Hempstead asserts thee principal arguents. First , the Brooks ' petition is brought almost 12 months after the initial 90 days within which the Notice of Claim should have been filed and 16 days before the e)(piration of the one year and 90 days statute of limitations. Second , given that the claimant has lived within blocks of the accident site for 40 years and who testified at her 50-h hearing that she was " familar with the general area of the accident " her claim that she " could not determine as a matter of fact whether of Hempstead or the Town of North Hempstead is "uneasonable In Opp. " she fell in the Town , insuffcient and incredible " (Aff. 4). Lastly, according to the petitioner s testimony, the roadway has since been resuraced and the alleged defective condition has been repaired and corrected; thus , the e)(traordinar delay has prejudiced the Town s investigation of the claim. Pursuant to General Municipal Law ~ 50-e(5), this Cour may permit the Notice of Claim under certain circumstances. The statute reads: service of a late [* 3] 5. Application for leave to serve a late notice. , may e)(tend the time to serve a notice of determining claim specified in paragraph (a) of subdivision one of this section. * * whether the public * * In , in paricular , whether to grant the e)(tension , the cour shall consider actual knowledge ofthe essential corporation or its attorney or its insurance carer acquired facts constituting the claim within the time specified in subdivision one of this section or The cour shall also consider all other relevant facts and 1. Upon application , the court , in its discretion within a reasonable time thereafter circumstaces , including: whether the claimant was an infant , or mentally or physically incapacitated , or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation e)(cusable its insurance carer; whether the claimant in serving a notice of claim made an error concerning the identity of the public corporation against which the claim should be . asserted; if service of the notice ' of claim is attempted by electronic means pursuant to , whether the delay in serving the notice of paragraph (e) of subdivision three of this section claim was based upon the failure of the computer system of the city or the claimant or the attorney, as the case may be attorney representing the claimant; that such claimant or submitted evidence or proof as is reasonable showing that (i) the submission of the claim was maner and would have been completed but attempted to be electronically made in a timely , and (ii) that upon for the failure of the computer system utilzed by the sender or recipient receive such becoming aware of both the failure of such system and the failure of the city to submission , the claimant or attorney had insufficient time to make such claim within the permitted time period in a maner as otherwise prescribed by law; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits. Thus , in this case , the relevant factors for the Cour to consider include (1) proof that the days from municipality acquired actual knowledge of the facts constituting the claim within ninety its accrual or a reasonable time thereafter , (2), whether the application provides a reasonable e)(cuse for failing to serve a timely notice of claim, and (3) a showing of whether the delay prejudices the municipality in maintaining its defense 5O-(5); v. Matter oj Padovano 2006), citing Willams v. substantially on the merits (General Municipal Massapequa Union Free School Dist. 31 AD3d 563 (2 Law Dept. , while a Nassau County Med. Ctr. 6 NY3d 531 (2006)). Furhermore balancing test of all the relevant factors wil be employed by this Court in deciding whether to grant [* 4] s actual knowledge of the the instant application , the most irnportant factor remains the respondent' essential facts constituting the petitioner s claim and whether it was acquired within the ninety day time period to file a Notice of Claim or within a reasonable time after the ruing of the time to fie a Notice of Claim. Indeed , the statute sets this one factor apar from all the remaining factors are "necessarly determinative (Casias v. others; none of the City of New York 39 AD3d 681 (2 Dept. 2007)). In that regard , this Cour notes that here , there is no indication in the record that the respondent Town of Nort Hempstead had actual knowledge of the facts essential to the claim within 90 days of the accident or a reasonable time thereafter. " What satisfies the statute is not knowledge of the wrong but notice of the clairn. The municipality must have notice or knowledge of the specific (Matter of Sica v. Board of claim and not general knowledge that a wrong has been committed" , petitioner s argument in reply that Educ. oj City oj NY. 226 AD2d 542 (2 Dept. 1996)). Thus knowledge of the e)(istence of its contract with a private company for the repair and paving of roads in the Town , including the road upon which Petitioner allegedly slipped and fell , demonstrates that the work was necessar is entirely unavailing. The e)(istence of a contract and knowledge of repair work being performed does not evidence notice of the petitioner s claim. Petitioner argues that: The very fact that the TOWN OF NORTH HEMPSTEAD e)(ecuted the contract (with Anthony Enterprises for the repair and paving of certain roads in the Town) clearly demonstrates... (the Town) knew that the work was being preformed (sic) on roadways in they had access their Town , which included the roadways where Petitioner had her fall(, the work preformed (sic) and stil have access to any and all work records and daily logs for was ongoingL)... (and thus) by the contractor showing the condition ofthe roads as.th job whatsoever demonstrated by the Respondent in this no prejudice there is absolutely proceeding. (Reply Aff., 5f. [* 5] This argument is without merit. This Cour is not persuaded that the petitioner , having been represented by counsel at all times , did not know that the accident site was within the Town of North Hempstead. The petitioner failure to ascertain the respondent's ownership and/or maintenance of the accident site does not constitute a reasonable e)(cuse , since she has failed entirely to demonstrate that either she or her counsel made any effort to investigate or research the ownership and maintenance issue in the first v. place (Bridgeview at Babylon Cove Homeowners Assn., Inc. AD3d 404 405-406 (2 Dept. 2007); Matter oj Nieves v. Incorporated Vii. of Babylon , 41 Girimonte 309 AD2d 753 , 754 (2 Dept. 2003)). Nonetheless, even assuming that the petitioner s erroneous beliefthat the accident site was (Matter of Flynn within the Town of Hempstead constitutes a reasonable e)(cuse for her delay Town oj Oyster Bay, 256 AD2d 341 (2 Dept. 1998); Matter oj Goldberg v. County oj Suffolk , 227 AD2d 482 (2 Dept. 1996)), the fact is that the respondent did not have any notice of the facts underlying the petitioner s claim until she sought leave to serve a late Notice of Claim upon them. Furermore , given the transitory nature of the alleged defect in the pavement of the street this Cour concludes that the delay herein has indeed prejudiced investigate the defect and other circumstances surounding the accident Mem. Special Educ. Ctr. 38 AD3d 902 , 903 (2 York 268 AD2d 588 (2 Dept. 2007); the respondent's abilty to v. (Papayannakos Matter oj Gofman v. Levittown City oj New Dept. 2007)). Therefore , after due deliberation , it is ORDERED , that the motion by petitioner , Sherr Brooks , for an Order pursuant to General . Municipal Law ~50-e(5), granting her leave to serve a late Notice of Claim upon the respondent [* 6] Town of North Hempstead is denied. The paries ' remaining contentions have been considered and do not warant discussion. This shall constitute the Decision and Order of the Cour. Dated: Mineola, New York May 8 , 2012 ENTER: Copies mailed to: Leo Tekiel , Esq. Attorneys for Petitioner INTERED MAY 11 2012 NAHAU COUNTY Richard S. Finkel , Esq. Attorneys for Respondent COUNTY CL!RtrS OFFIC!

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