Titus v City of New York

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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 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 312712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: 314-rn - NEW YORK COUNTY PART 5 - PAPERS N U M W D Notice of Motion/ Order to Show Cause - Affidavlts - Exhlbite ... I 3 Answerlng Affldavlts - Exhiblta Replylng Affidavlto Dated: ;l/ f&- 3, / L y S 1 m 20P Check one: FINAL DISPOSITION Check if appropriate: DO NOT POST 2 2 a 0 SUBMIT ORDER/ JUDG. & - J. S. C. A JAFFE NON-FINAL WOSITION REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] Index No, 100310/12 Petitioner, Motion Date: Motion Seq. No.: 1/31/12 00 1 - against - DECISION & JUDGMENT THE CITY OF NEW YORK, .. For petitioner: Stephen G. Bock, Esq. Law Offices of Regina L. Darby 26 Broadway, 2 I " F1. New York, NY 10004 212-480-3234 For respondent: Y ael Barbibay, ACC Michael A. Cardozo Corporation Counsel 100 Church St. New York, NY 10007 212-788-0560 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 [* 3] 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 iy 20061). 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 iy 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 f - 2 [* 4] 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 iy 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 3 1 [* 5] 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 [lgt Dept 20091, lv denied 14 NY3d 712 [2010] [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 condition]). Accordingly, it is ADJUDGED and ORDERED, that petitioner s application for leave to serve a late notice - . of claim is denied. ENTER: i Barbara Jaffe, J DATED: J.S.C. March 22,2012 New York, New York W R JAFFE 2 2 2QQ 4 .