Matter of Conway v Hudson

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Matter of Conway v Hudson 2012 NY Slip Op 31649(U) June 25, 2012 Supreme Court, New York County Docket Number: 101609/12 Judge: Alexander W. Hunter Jr 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] n d SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK ALEXANDER W. HUNT ¬R fi PRESENT: COUNTY PART % < \ MOTION DATE MOTION \ sm. NO. - MOTION CAL. NO. The following papers, numbered 1 to (lp were read gn this motlan to/for Notice of Motlonl Order to Show Cause - Affldaviti - Exhibits ... - Answerlng Affldavlts - Exhibit8 Io-I RsplylnQ Affldavits 13- /b Cross-Motion: 0 Yes 9 @No Upon the foregolng papere, It Is odored that this motlon JUN 21 2012 NEW YORK UNTY CLEHK S OFFICE Dated: m N W, HUNTER JR D E R Check one: k A Check if appropriate: L DISPOSITION NON-FINAL DISPOSITION 0 DO NOT POST SUBMIT ORDER/ JUDG. Js - c REFERENCE ] 0 SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORIC: COUNTY OF NEW YORK: PART 33 X In the Matter of the Application of Megan Conway, ___r--__ l--------------- --------------------r---- ----~---------- Pctitioner, For an Order Pursuant to G.M.L. Serve a Late Notice of Claim Index No.: 101609/12 Decision and Judgment 4 50-e(5j to -again st- Hudson River Park I rust, The application by petitioner for permission to serve a late notice of claim against respondent is dcnied and the petition is dismissed with prejudice, without costs and disbursements to either party. On September 27,201 1, petitioner Megan Conway ( petitioner or Conway ) was jogging on a bicycle path along the Westside Highway at Canal Street in Manhattan when she tripped on a metal chain that linked two traffic barriers approximately fifteen feet apart from one another. Petitioner asserts that this area was the sole means of egress from the bicycle path. On November 7, 20 1 1, a letter of representation was scnt by petitioner s counsel to respondent Hudson River Park Trust ( respondent or HRPT j notifying them that the firm had been retained to prosecute claims arising from injuries sustained in an accident ...on the West side Highway at Canal Street & West Street, New York, NY. The letter also indicated the date and time of the incident. On November 9,201 1, a timely notice of claim was served upon the City of New York. On Dccember 22,201 1, Conway appeared for a G.M.L.5 50-h hearing conducted by the City of New York. Petitioner alleges that HRPT along with the City of New York failed to maintain and inspect the park and is therefore liable for the injuries she sustained during a trip and fall accident. Conway asserts that respondent will not be substantially prejudiced if she is permitted to serve a late notice of claim. Petitioner argues that respondcnt received timely notice of the claim by letter dated November 7,201 1 and the condition that caused petitioner to fall, the chain, I Respondent is a public benefit corporation created under the Hudson River Part Act 5 S( I ) for the purpose of designing, building, operating, and maintaining the Hudson River Park. . [* 3] exists today and is ready for inspection. It was no1 until January 25, 2012, when petitioner s counsel fell that it had a strong claim against HRPT as the managing agent for the parcel of land where the accident occurred. On that date, petitioner s counsel was contacted by a second client who suffcred injuries due to the same allegedly dangerous condition in the instant underlying claim. I n support of her application, petitioner submits a copy of the proposed notice of claim, the letter datcd November 7, 201 1 addressed to respondent, a copy ofthe timely notice of claim served upon the City of New York and a photograph of chain positioned between the two barriers. Respondent asserts that the incident occurred on September 27, 201 1 and a notice of claim was due by December 26,201 1. HRPT argues that it did not learn the essential facts about this claim until March 5,2012, the date when respondent was served with the instant order to show cause. Pctitioner s November 7,201 1 letter makes no mention o h chain or Hudson River Park. Instead, respondent asserts that this letter suggests a roadway accident outside Hudson River Park. Therefore, HRPT had no reason to investigate the allcged incident. Respondent also argues that petitioner has no reasonable excuse for her failure to serve a timely notice of claim. Both HRPT s website and the Hudson River Park Act 5 1 1 explicitly indicate its notice of claim requirement. Respondent asserts that the chain is used by the Port Authority of New York and New Jersey ( Port Authority ) personnel in connection with its operations at a Holland Tunnel ventilation tower located at Pier 34. Port Authority employees periodically move and reposition the chain to permit passage of their vehicles through the two barriers. Had respondent been timely served with a notice of claim, HRPT asserts that it would have interviewed Port Authority personnel as to the chain s positioning within the ninety day period. Petitioner also fails to indicate in what dangerous manner the chain was positioned on the date of the incident and she does not indicate when the photograph of the chain was taken. There were also no incident reports filed indicating any soi-t of accident that occurred on that day. Respondent also argues that the instant application is defective because it is not supported by evidentiary proof in admissible form. HRPT maintains that an affidavit of fact is required as support for an application for a late notice of claim and petitioner has failed to submit one. In reply, petitioner argues that the November 7, 201 1 letter in conjunction with the instant order to show cause provides respondent with actual notice of the underlying facts within a reasonable time aficr the expiration of the ninety day period. Petitioner also notes that respondent received a prior notice of claim from another individual who suffered injuries due to the deiective condition. Petitioner asserts that the photograph she took of the chain immediately after her accident provides thc same information that HRPT would have gathered had it conductcd an investigation shortly after the incident. In sum, petitioner argues that respondent would suffer no prcjudice if the instant petition was granted. 2 [* 4] In lurther support of her application, petitioner submits an affidavit attesting to the facts surrounding the incident as well as the reasons explaining why she failed to timely serve a notice of claim on respondent. Filing a notice of claim pursuant to G.M.L. 50-e is a condition precedent for tort claims against municipalities. G.M.L. 8 50-e(l)(a). In an application to serve a notice of claim beyond the 90 day statutory period, the court will consider the following three factors: 1) whether petitioner has a reasonable excuse for the delay; 2) the municipality had actual knowledge of the essential facts constituting thc claim within 90 days after the claim accrued or a reasonable time thereafter; and 3) the delay in serving the late notice of claim will not prejudice the municipality. G.M.L.8 50-e(5). The purpose of the notice of claim is to protect the public corporation against stale or unwarranted claims and to enable it to investigate claims timely and efficiently. Heimttn v. City of New York, 85 A.D.2d 25,27 (lut Dept. 1982). However, the absence of one of the factors is not dispositive and the absence of a reasonable excuse is not fatal. Matter of Rqbowv v. City of New York, 305 A.D.2d 320 (l t Dept. 2003). It is well settled that a party must submit an affidavit from a individual with personal n knowledge of the facts in support of an application to serve a late notice of claim. &, Bailev v. City of New York, 159 A.D.2d 280 (lBt Dept. 1990); Rodriguez v. Citv of New York, 86 A.D.2d 533 (1 Dept. 1982). In an attempt to cure this defect, petitioner submitted an affidavit in her reply papers outliniiig the details of the accident as well as providing an excuse for her delay in serving a timely notice of claim. However, the function of reply papers is to address arguments madc in opposition to movant s papers not to permit movant to introduce new arguments or new evidence in support of the motion. Kerlpellv v, Mobius Real@ Holdinw, 33 A.D.3d 380 (1 Dept. 2006); Ritt v, Lenox Hill HOSR~, A.D.2d 560 (lnt 182 Dept. 1992). Therefore, petitioner s affidavit submitted in reply papers will be disregarded by this court. Petitioner has failed to establish that respondent acquired actual knowledge of the essentials facts constituting the claim within ninety days after the claim accrued or a reasonable time thereafter. Actual knowledge of essential facts of the claim means the facts which would show a connection between the accident and the municipal corporation s ncgligence. Wright v. CiW of New York, 66 A.D.3d 1037 (2nd Dept. 2009). Contrary to petitioner s arguments, the November 7,201 1 letter did not provide respondent G t h actual knowledge of the essential facts constituting her claim. The letter makes no mention of a chain, a trip and fall accident, or even Hudson River Park. Instead, a plain reading of the letter suggests that a roadway accident had occurred on the West side Highway, a roadway which is not maintained by HKPT. Respondent did not acquire actual knowledge of the underlying claim that it was negligent in maintaining the portion of Hudson River Park where petitioner was injured. The letter in no way alertcd respondent as to the need to investigate a metal chain that was positioned between two jersey barriers along the bicycle path at Canal and West Street. Respondent would also be prejudiced because it has lost the opportunity to timely investigate the claim by inspecting the positioning of the chain shortly after the incident and interviewing any Port Authority employees who may have repositioned the chain that day and any other witnesses to the incidcnt. Moreover, petitioner has 3 [* 5] failed to establish that she has a reasonable excuse for the delay. Accordingly, it is hereby, ADJIJDGED that the petition is denied and the proceeding is disrnisscd with prcjudice, without costs and disbursements to either party. Datcd: June 12,2012

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