Franklin-Williams v City of New York

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Franklin-Williams v City of New York 2011 NY Slip Op 32549(U) September 28, 2011 Supreme Court, New York County Docket Number: 107677/06 Judge: Barbara Jaffe 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. - SCANNED ON 91291201 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART Er #r & MOTION DATE - v MOTION SEQ. NO. MOTION CAL. NO. I were read on thls motion tolfor The following papers, numbered 1 to L d w PAPER$ NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits I ... z Answerlng Affidavits - Exhlbits 3 lepiylng Af f idavita 0 Yes :ross-Motion: @ FILED No Jpon the foregoing papers, it Is ordered that this motlon SEP 29 2011 1 NEW YORK COUNTY CLERK S OFFICE I Dated: SEP 2 8 2Ol1 Check one: 0 FINAL DISPOSITION 0 DO NOT POST Check if appropriate: 0 SUBMIT ORDER/ JUDG. / 3 1 BM B~RA JAFFE J. S. C. JSC N L - F I N A L DISPOSITION 0 REFERENCE SETTLE ORDER/ JUDG. [* 2] Plaintiffs, 7/12/11 004 Arg.: Motion Seq. No.: -against- DECISION & ORDER FILED THE CITY OF NEW Y O U , et a!. , SEP 29 2011 Defendants. NEW YORK COUNTY CLERK'S OFFICE For plaintlff: Jarad Lewis Siegel, Esq. Edelman, Krash & Jaye, PLLC One Old Country Rd., Ste. 210 Carle Place, NY 1I5 14 5 16-742-9200 For defendant City: Tanisha Joy Byron, ACC Michael A. Cardozo Corporation Counsel 100 Church St., 4th F1. New York, NY 10007 2 12-788-0536 By order to show cause dated March 17,2011, plaintiffs move for an order granting them leave to amend their notice of claim and complaint, and vacating the dismissal of the action or restoring the action to the trial calendar. Defendant City opposes. I, BACKGROUND On February 14,2006, plaintiff Minnie Franklin-Williams was allegedly injured after she tripped and fell on the sidewalk on Eighth Avenue between 133rdand 1 34thStreets in Manhattan. (Affirmation of Jarad Lewis Siegel, Esq., dated Mar. 7,201 1 [Siegel Aff.], Exh. A). On or about April 7, 2006, plaintiffs served City with a notice of claim, and annexed six photographs of the accident location, ( I d ) . On or about May 24, 2006, plaintiffs served defendants with a summons and complaint, alleging that plaintiff fell on the sidewalk abutting the premises at 2502 Eighth Avenue in [* 3] Manhattan. (Id., Exh. B). On or about August 3, 3007, plaintiffs served their bill of particulars in which they again identified the accident location as the sidewalk abutting the premises at 2502 Eighth Avenue in Manhattan. (Id, Exh. F). By decision and order dated November 15, 2007, plaintiffs were granted leave l o amend the complaint to add additional defendants. ( I d , Exhs. D, E). On July 15,2008, plaintiff testified at an examination before trial (EBT) that she fell on the sidewalk in front of a store on the corner of 1341h Street and Eighth Avenue. (Id., Exh. G). On or about July 17,2008, plaintiffs served a supplemental bill of particulars in which they identified the accident location as 2508 Frederick Douglas Boulevard a/k/a 2508 Eighth Avenue in Manhattan. (Id., Exh. I). On May 19, 2009, plaintiffs filed their note of issue, (Id., Exh. J). By decision and order dated September 23, 2009, the complaint was dismissed against all of the defendants except City. (Id.,Exh. K). On March 29,2010, the parties appeared before a Judicial Hearing Oficer (JHO) for trial, and the JHO dismissed the action as plaintiffs were not ready to proceed. ( I d , Exh. L). L M Q T I O N TO AMEND A. Cmtentiom Plaintiffs argue that they should be permitted to amend their notice of claim to reflect the correct location of the accident as the photographs annexed to the notice depicted the location and their misidentification of the location resulted from a typographical error, and assert that City cannot claim any prejudice absent proof that it attempted to investigate the claim and was unable to do so due to the error. (Siege1 M.). 2 , [* 4] City argues that plaintiffs five-year delay in seeking to amend the notice has prejudiced it as discovery has been completed and the action has been dismissed. It observes that the photos annexed to the notice reflected both alleged accident locations, thus failing to provide notice of the correct location, and asserts that it investigated the incident by searching for all relevant records and producing a witness for an EBT related only to 2502 Eighth Avenue and it would be prejudiced by having to conduct a new investigation at this stage of the proceeding. (Affmation of Tanisha Joy Byron, ACC, dated Apr. 15,2011 [Byron Aff.]). In reply, plaintiffs maintain that City has failed to establish actual prejudice absent proof that it conducted a physical investigation of the location, and observe that the two accident locations are only several feet away from each other. (Reply Affirmation, dated June 6,20 11 B P l Y Aff.1). J3.Analysis Pursuant to GML 5 50-e(l)(a) and 50-i, a tort action against a municipality must be commenced by service of a notice of claim upon the municipality within 90 days of the date on which the claim arose. Pursuant to GML Q 50-e(6): At any time after the service of a notice of claim and at any stage of an action or special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby. The purpose of the notice of claim is to give a municipal authority the opportunity to investigate, (Goodwin v New York City Hous. Auth., 42 AD3d 63, 67 [ lgt Dept 2007]), and a notice of claim is sufficient if it includes information that enables a municipal agency to 3 [* 5] investigate and evaluate the merits of a claim (Bennett v New York City Tr. Auth., 4 AD3d 265 [lstDept 20041, u f d 3 NY3d 745). Here, although plaintiffs initially misidentified the accident location, the photographs annexed to the notice depicted both locations, and they corrected their error through plaintiffs EBT testimony and service of a supplemental bill of particulars two years after the accident. Moreover, discovery continued for another 10 months thereafter. Thus, City had notice of the correct location within approximately two years of the accident and could have conducted an investigation before discovery was complete, the note of issue filed, and the action dismissed. (See Matter o Barrios v City o New York, 300 AD2d 480 [2d Dept 20021, lv denied 100 NY2d f f 534 [2003] [granting motion to amend notice of claim as notice was submitted along with photographs from which correct location could have been ascertained, and City informed of correct location at 50-h hearing five months after notice served]). City also failed to establish that it cannot now investigate the claim absent proof that any relevant records no longer exist or witnesses cannot be located, and submits no proof that it conducted a physical investigation of the incorrect location. Plaintiffs have thus demonstrated that City has not been prejudiced by their error and will not be prejudiced by permitting amendment of the notice of claim. (See eg Rodriguez v City oflvew York, 38 AD3d 268 [ 1St Dept 20071 [prejudice established where municipal defendant shows it actually conducted investigation at wrong location due to incorrect information]; Mutter o Zuhru v New York City f Hous. Auth., 16 AD3d 245 [13 Dept 20051, lv denied 5 NY3d 706 [absent evidence that iy defendant undertook investigation, it was unable to demonstrate prejudice]; Williams v Ct of New York, 229 AD2d 1 14 [ 1 Dept 19971 [prejudice not shown absent claim that City attempted 4 [* 6] to conduct investigation and was unable to do so due to incorrect address]). up TION TO AMEND COMPLA N T MO Having determined that plaintiffs should be permitted to amend their notice of claim, for the same reasons they are permitted to amend the complaint to provide the correct location of the accident. JV. MOTIQNTO VACATF, DISMISSAL, A, Contentiom Plaintiffs allege that despite having told the JHO two weeks before the case was dismissed that they would be unable to proceed on March 29,2010 due to the Passover holiday, the JHO nevertheless dismissed it, and they assert that as the JHO s order was never approved or recognized by a Justice of the Supreme Court, the JHO lacked the authority to dismiss and the dismissal is thus a nullity. They thus maintain that they have a reasonable excuse for being unable to proceed to trial, and submit plaintiffs affidavit to establish a meritorious claim against City. (Siege1 Aff.). City denies that plaintiffs established a reasonable excuse for their failure to proceed as the parties were informed before the trial date that no adjournments would be granted, and alleges that the correct location of the accident, 2508 Eighth Avenue, is not a valid address and that plaintiffs thus cannot demonstrate that City was the abutting landowner w h c h may be held liable here. (Byron Aff.). In reply, plaintiffs submit proof that in an unrelated judicial proceeding, City conceded being the owner of the premises at 2508 Eighth Avenue, and observe that City does not dispute that the JHO lacked the authority to dismiss the case. (Reply Aff,). 5 [* 7] B. Analvsis Absent any evidence that the order of the JHO dismissing the action was confirmed or signed by a Justice of the Supreme Court, the dismissal is a nullity. (Nguyen v Prime Residential Bronx R & R V, 307 AD2d 201 [lstDept 20031 [JHO had no authority to dismiss petition]; compare Fink v Antell, 19 AD3d 2 15 [ 1st Dept 20051 [dismissal order was issued by court based on record of proceeding before JHO]). Even if the dismissal order had been authorized, plaintiffs establish a reasonable excuse for the default, as it is undisputed that the case had been set for trial for the first time on March 29,2010 and plaintiffs counsel had a religious conflict. (See eg Parker v Alucantara, 79 AD3d 429 [ lSt Dept 20101 Cplaintiff entitled to order vacating dismissal of action as there was no indication of willful conduct by counsel in failing to return to courtroom or pattern of seeking repeated adjournments or not complying with court orders]). Plaintiffs also demonstrate a meritorious claim based on their assertion that the accident occurred due to a defect on the sidewalk and proof that City is the abutting property owner. V, CONCJ .USION Accordingly, it is hereby ORDERED, that plaintiffs motion to amend is granted, and the amended notice of claim and amended complaint annexed to the motion papers are deemed served upon plaintiffs service of a copy of this order with notice of entry; it is further ORDERED, that plaintiffs motion to vacate or restore is granted; and it is further ORDERED, that, within 20 days from entry of this order, plaintiffs serve a copy of this order with notice of entry on the Clerk of the Trial Support Office (Room 158), who is directed 6 [* 8] to restore the case to the trial calendar under the original calendar number. FILED I '- ENTER: 3,' SEP 29 2011 NEW YORK COUNTY CLERK'S OFFICE DATED: September 28, 2011 New York, New York SEP 2 P 2011 7

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