Matter of Segure v City of New York

[*1] Matter of Segure v City of New York 2014 NY Slip Op 24384 Decided on December 4, 2014 Supreme Court, Kings County Baynes, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 4, 2014
Supreme Court, Kings County

In the Matter of the Application of Nyasia Segure, pursuant to General Municipal Law § 50-e(5), as parent and natural guardian of JAEL SEGURE, an infant, and Nyasia Segure, individually, for leave to file a late Notice of Claim, Nunc Pro Tunc`

against

The City of New York and the New York City Department of Education, as, Defendants.



505596/14



Petitioners' CounselLuis F. Ras, Esq.

Ras Associates

2500 Westchester Ave, Ste 320

Purchase, NY 10577

Counsel to Respondent City

Zachary W. Carter, Esq., Corporation Counsel

By: Carl Forbes, Jr., Esq.

350 Jay St., 8th Fl.

Brooklyn, NY 11201
Johnny L. Baynes, J.

Petitioners, Jael Segure (hereinafter "Jael" or "the infant") and her mother and natural guardian, Nyasia Segure, (hereinafter "Petitioner") (collectively "Petitioners"). move by Notice of Motion dated July 21, 2014, for an Order pursuant to General Municipal Law § 50-e(5) granting leave to serve a late Notice of Claim , nunc pro tunc, and tolling the statute of [*2]limitations for sixty (60) days following issuance of the decision herein pursuant to CPLR § 204(a).

This is an action alleging injuries to the infant petitioner, Jael, as a result of fall from the staircase of the jungle gym at the exterior playground of P.S. 9, 80 Underhill Avenue, Brooklyn, New York, on the 17th day of April 2013. Petitioners served a Notice of Claim on Respondents City of New York and New York City Department of Education (hereinafter "Respondents") on May 7, 2014, one year and 30 days after the claimed incident and injury. Thus, the Notice of Claim is late but within the one year and ninety days Statute of Limitations. The instant Motion was made one year and ninety-four days after the incident complained of, on July 21, 2014. Respondents ask that the Court reject petitioner's request to file a late Notice of Claim.

General Municipal Law § 50-e mandates that a notice of claim be filed within ninety (90) days of the date on which a claim arose as a precondition to commencing a law suit against a municipality for personal injuries.

The statute was amended in 1976 (L. 1976, ch. 745.82) to give the Court discretion to allow late filing of a Notice of Claim. That Amendment states

the extension shall not exceed the time limited for the

commencement of an action by the claimant against the public

corporation. In determining whether to grant the extension, the

court shall consider, in particular, whether the public corporation

or its attorney or its insurance carrier acquired actual knowledge

of the essential facts constituting the claim within the time

specified in subdivision one or within a reasonable time thereafter.

The Court shall also consider all other relevant facts and circumstances

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 by reason of his justified reliance upon

settlement negotiations made by an authorized representative of the

public corporation or its insurance carrier; whether the claimant

in serving a notice of claim made an excusable error concerning the

identity of the public corporation against which the claim should be

assessed; and whether the delay in serving the notice of claim

substantially prejudiced the public corporation in maintaining its

defense on the merits.

General Municipal Law § 50-e..

A Notice of Claim served outside the 90-day statutory period is a nullity absent leave of Court and has no legal effect. Friedman v City of New York, 19 AD3d 542 [2d Dept 2005]; Mack v City of New York, 265 AD2d 308 [2d Dept 1999]; Kokkinos v Dormitory Auth., 238 AD2d 550 [2d Dept 1997]. However, the Court has broad latitude in deciding whether to grant leave to file a Late Notice of Claim.

The factors which the Court is directed to consider in determining whether to exercise its discretion are set forth in Gen Mun L. § 50-e, which states that the Court shall consider all relevant facts and circumstances. In particular, the Court is directed to consider [*3]whether:

[T]he 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 or its insurance

carrier; whether the claimant is serving a Notice of Claim

made an excusable error concerning the identity of the

public corporation against which the claim should be

asserted; and whether the delay in serving the Notice of

Claim substantially prejudiced the public corporation in

maintaining its defense on the merits.

Gen Mun L §50-e(5).

A Court will consider three factors in assessing whether to grant leave to serve a

late Notice of Claim: (1) whether a petitioner proffered a sufficient excuse for the delay;

(2) whether the municipality had actual knowledge of the underlying facts constituting the claim

within the 90 day period; and (3) whether the municipality is prejudiced by the untimely

Notice of Claim, See, e.g., Dominguez v. City of New York, 272 AD2d 326 [2d Dept. 2000];

Matter of Daniels v. City of New York, 243 AD2d 710 [2d Dept 1997]

Munnerlyn v. City of New York, 203 AD2d 437 [2d Dept. 1994]

In this particular instance, the petitioner was, in fact, an infant on the date of the alleged incident and is still an infant. It should be noted that this Court takes very seriously the fact that the claimant is an infant. However, infancy, in and of itself does not toll the time in which one must seek leave to file a late Notice of Claim. Campbell v City of New York, 4 NY3d 200 [2005]; Cohen v Pearl River Union Free School District, 51 NY2d 256 [1980]; Mazzola v Kelly, 281 AD2d 604 [2d Dept 2001]. It is only one factor which must be considered.

In addition to the infancy of the petitioner in assessing a request to file a late notice of claim, a court will consider whether a petitioner proffered a sufficient excuse for the delay; whether the municipality had actual knowledge of the underlying facts constituting the claim within the 90 day period; and whether the municipality is prejudiced by the untimely Notice of Claim. See, Dominguez v City of New York, 272 AD2d 326 [2d Dept 2000]; Matter of Daniels v City of New York, 243 AD2d 710 [2d Dept 1997]; Munnerlyn v City of New York, 203 AD2d 437 [2d Dept 1984].

In this instance, it is pointed out that petitioner contemporaneously reported the accident to school staff and documented it in an "Occurrence Report" which was submitted to the City within a week after the accident. Thus, petitioners did not know, until consulting counsel, that further Notice of Claim was required. While a lack of knowledge is insufficient excuse for filing a late Notice of Claim, failure of such excuse is not necessarily fatal to the petition where knowledge of the facts underlying the claim was received contemporaneously and there is no prejudice to respondents due to delay. Leeds v Port Washington Union Free School Dist., 55 AD3d 734 [2d Dept 2008]. Nyasia Segure states in her Affidavit in Reply to Respondents' [*4]opposition herein, sworn to on October 2, 2014, that she spoke with the school's principal, Sandra D'Avilar, and the Assistant Principal, Deborah Smith, and the school safety officer and briefed them on the incident which occurred. It was then that the Occurrence Report was prepared. This report noted a witness to the occurrence, Alexis Nicholson, another student. Petitioner states that the Occurrence Report was inconsistent with the information with which she provided the Principal, Assistant Principal and School Safety Officer. Specifically, the Occurrence Report claimed that the infant petitioner "tripped over her right leg" when it was petitioner's claim that the infant was caused to fall off of the jungle gym stairs because she was being chased by another student. (Affidavit of Nyasia Segure, sworn to October 2, 2014, ¶ 4). Petitioner states she was assured that a new report would be created and submitted to the Department of Education, something which never occurred.

Conversely, respondents neither contradict the assertions of Petitioner as regards the Occurrence Report nor any showing that the filing of a late Notice of Claim would be prejudicial. It is unlikely that Respondents could make such a showing where the instant motion was made only four days after the running of the one year and ninety day statute of limitations and Respondents had contemporaneous notification of the alleged facts. This view was most recently taken by the Court of Appeals when it sustained a grant of leave to file a late Notice of Claim where the municipal entity had actual knowledge of the occurrence complained of under analogous circumstances. Matter of Dalton v Akron Cent. Schs, 22 NY3d 1000 [2013]. The Dalton Court placed great weight on the report given to the school in the same manner as the Occurrence Report given by petitioner to the administrative staff of P.S. 9.

In the matter sub judice, the respondents do not deny having knowledge of the incident. They offer no showing of prejudice and had, and have, ample opportunity to investigate the incident complained of.

WHEREFORE, it is hereby

ORDERED and ADJUDGED that Petitioners' Motion to file a late Notice of Claim is granted; and it is further

ORDERED and ADJUDGED that Petitioners are to serve and file a copy of this Order with Notice of Entry within forty-five days of entry of the within Order by the Clerk of Court; and it is further

ORDERED and ADJUDGED that Petitioners are to serve a copy of the Notice of Claim upon respondents simultaneously with service of this Order with Notice of Entry; and it is further

ORDERED and ADJUDGED that any action to be filed herein shall be served no later than thirty (30) days of service of this Order and the Notice of Claim herein upon respondents and that Petitioners' time to serve and file same is only toled for that period of time.

The foregoing constitutes the Decision and Order of this Court.

E N T E R

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JOHNNY L. BAYNES, JSC