Matter of Diaz v City of New York

[*1] Matter of Diaz v City of New York 2010 NY Slip Op 50354(U) [26 Misc 3d 1232(A)] Decided on March 9, 2010 Supreme Court, Queens County Flug, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 9, 2010
Supreme Court, Queens County

In the Matter of the Claims of Jonathan Diaz, et al., Petitioners,

against

The City of New York, et al., Respondents.



24160 2009



Attorney for Petitioners:

Jason Bernstein, Esq.

DeSimone, Aviles, Shorter & Oxamendi, LLP

145 Hudson Street - Suite 5C

New York, New York 10013

Attorney for Respondents:

Bruce Strikowsky, Esq.

Schnader Harrison Segal & Lewis, LLP

140 Broadway - Suite 3100

New York, NY 10005

Phyllis Orlikoff Flug, J.

As a condition precedent to the commencement of a tort action against the City, petitioners were required to serve a notice of claim within 90 days after accrual of the claims (GML § 50-e[1][a]; see Laroc v City of New York, 46 AD3d 760 [2007]). Upon application, the court, in its discretion, may extend the time to serve a notice of claim (GML § 50-e[5]; see Bitetto v City of Yonkers, 13 AD3d 367 [2004]). In determining whether to grant leave to serve a late notice of claim, a court must consider various factors, including whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter, whether the petitioner was an infant or mentally or physically incapacitated, whether the petitioner had a reasonable excuse for the [*2]failure to serve a timely notice of claim, and whether the delay would substantially prejudice the public corporation in maintaining its defense (GML § 50-e[5]; see Troy v Town of Hyde Park, 63 AD3d 913 [2009]). A court may consider all relevant factors and the presence or absence of any one factor is not necessarily determinative (see Matter of Vicari v Grand Ave. Middle School, 52 AD3d 838 [2008]).

Initially, the court notes that the instant application was improperly brought as a motion because it is actually a special proceeding since no action was pending at the time it was commenced (see e.g. Lewin v County of Suffolk, 239 AD2d 345 [1997]). Consequently, the improperly denominated notice of motion will be converted into a petition for leave to serve a late notice of claim.

With respect to the City's argument that petitioners' personal injury claims are barred by the statute of limitations, a plaintiff's cause of action for damages resulting from exposure to toxic substances, where as here, starts to run from the date the plaintiff begins to suffer the manifestations and symptoms of his or her physical condition, that is, when the injury is apparent (CPLR 214-c[3]; see Annunziato v City of New York, 224 AD2d 31 [1996]). The timeliness of petitioners' personal injury claims, therefore, turns on when petitioners discovered or reasonably should have discovered their injuries, not on the date of discovery of the specific cause of their injuries (see Matter of New York County DES Litig., 89 NY2d 506 [1997]). Contrary to petitioners' assertion, the controlling date is not August 29, 2008, when petitioners allegedly learned that their illnesses were caused by exposure to mold, peeling lead paint, and asbestos in the school, but rather the date when each petitioner first became aware of the manifestations or symptoms of his or her respective illness is determinative for statute of limitations purposes (see e.g. Searle v City of New Rochelle, 293 AD2d 735 [2002]). Indeed, petitioners' discovery of their illnesses may have been earlier or later than August 29, 2008. However, no proof is offered as to when each individual petitioner discovered the primary condition on which their respective claims are based. Thus, the issue of whether petitioners' personal injury claims are time barred cannot be resolved as a matter of law on the evidence presented.

Even if the statute of limitations has not expired on the personal injury claims, petitioners failed to meet their burden on the merits of the application for leave to serve a late notice of claim. In support of their petition, petitioners submitted their proposed notices of claim, copies of the notices of claim for 47 other claimants served on November 25, 2008, and a copy of an undated article from an unnamed newspaper. On this record, petitioners failed to offer a reasonable excuse for the delay in seeking leave to serve a late notice of claim. The bare assertion by petitioners' counsel, who is without personal knowledge, that petitioners were "monitoring their health" was unsupported by any affidavits or medical records demonstrating that petitioners were unable to comply with the statutory requirement to serve a timely notice of claim (see e.g. McLaughlin v North Colonie Cent. Sch. Dist., 269 AD2d 658 [2000]). Moreover, while the infant petitioners' claims are tolled by the period of their infancy for statute of limitations purposes (CPLR 208), the infancy of an injured plaintiff, standing alone, does not compel the granting of an application for leave to serve a late notice of claim (see Aceituno v [*3]Lai On Chan, 46 AD3d 716, 718 [2007]). Here, as to the infant petitioners, the delay in filing the notices of claim was unrelated to their infancy (see e.g. Cotten v County of Nassau, 307 AD2d 965 [2003]) and, in any event, the disability of infancy is outweighed by other factors.

While the court acknowledges that the failure to offer a reasonable excuse for the delay in serving a notice of claim is not necessarily fatal to the application (see Catterson v Suffolk County Dept. of Health Servs., 49 AD3d 792, 794 [2008]), petitioners failed to meet their burden of establishing that, within 90 days after petitioners' claims accrued or within a reasonable time thereafter, the City acquired actual notice of the essential facts constituting petitioners' claims. The newspaper article did not give rise to actual knowledge of petitioners' claims because it merely described the existence of mold, peeling lead paint, and asbestos at the subject school without indicating any connection between those conditions and petitioners' alleged injuries. It is well-settled that what satisfies the statute is not general knowledge that a wrong has been committed, but notice of the specific claim (see Matter of Devivo v Town of Carmel, 68 AD3d 991 [2009]; Matter of Sica v Board of Educ. of City of NY, 226 AD2d 542 [1996]). Knowledge of the injuries or damages claimed by a plaintiff, rather than mere notice of the underlying occurrence, is necessary to establish actual knowledge of the essential facts of the claim within the meaning of General Municipal Law § 50-e(5) (see Lemma v Off Track Betting Corp., 272 AD2d 669 [2000]). In addition, the fact that the City previously accepted notices of claim for 47 other claimants is insufficient to put the City on notice of the injuries or damages claimed by these petitioners (cf. Jordan v City of New York, 41 AD3d 658 [2007]; see Mangona v Village of Greenwich, 252 AD2d 732 [1998]). Notably, the petition was not supported by any other testimonial or documentary evidence establishing that the City obtained actual knowledge of the claims within the 90-day statutory period because petitioners did not present any evidence demonstrating when their claims accrued, which, as previously discussed, is the date petitioners discovered their respective injuries (see Matter of Monfort v Rockville Ctr. Union Free School Dist., 56 AD3d 480 [2008]). Given the absence of actual notice of the essential facts constituting petitioners' claims within 90 days after they arose coupled with the lack of a reasonable excuse for the delay in moving for leave to serve a late notice of claim, the City would be prejudiced by late service (see generally Williams v Nassau County Med. Ctr., 6 NY3d 531 [2006]).

As to petitioners' claims alleging a violation of federal civil and constitutional rights under 42 USC § 1983 (see Pendleton v City of New York, 44 AD3d 733 [2007]) and for discriminatory employment practices under Title VII of the Civil Rights Act of 1964 (see Tout v Erie Community College, 923 F Supp 13 [1995]) and New York Executive Law (see Lane-Weber v Plainedge Union Free Sch. Dist., 213 AD2d 515 [1995]), compliance with the notice of claim requirements under General Municipal Law § 50-e is not required because they are not tort claims. Therefore, these claims are not precluded by petioners' failure to serve a timely notice of claim.

Accordingly, the petition for leave to serve late notices of claim upon the City is denied. [*4]

Dated: March 9, 2010

J.S.C.