Smith v City of New York

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Smith v City of New York 2014 NY Slip Op 33401(U) December 11, 2014 Supreme Court, Bronx County Docket Number: 20671/14 Judge: Mitchell J. Danziger Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED De 17 2014 Bronx County Clerk SUPREME CdURT OF THE STATE OF NEW YORK CO NTY OF BRONX ---------~--------------------------------x SMI'!I'H, DECISION AND ORDER Plaintiff(s), Index No: 20671/14 - agpinst T E ITY OF NEW YORK AND THE NEW YORK CITY H US NG AUTHORITY, Defendant(s). ----~-------------------------------x In this action for alleged personal injuries precipitated by a an erous condition existing on the public sidewalk abutting real property, plaintiff moves seeking an order granting renewal of this Cort's orper dated June 23, 2014, which denied his application for (1) l ave to file a late notice of claim; (2) deeming the untimely notice of 1 claim filed by him timely nunc pro tune; and ( 3) and granting h:im leave to amend his complaint to reflect that a timely notice of claim was filed. Plaintiff avers that renewal is warranted ,insofar as he only became aware that he had conveyed th·s I I facts consitituting his claim to employees of defendant THE NEW YORK CI Y HOUSING AUTHORITY (NYCHA) after he made the prior motion and that, as a result, he failed to establish an element essential to the r lief, he then sought. Plaintiff also seeks reargument of this Cort's pDior order averring that in denying his prior application solely on :grounds that he failed to off er a reasonable excuse for his failu~e to timely file a notice of claim, the Court misapplied Page 1 of 14 [* 2] FILED De 17 2014 Bronx County Clerk NYCHA opposes the instant motion averring that co tr lling law. in of r as;the newly proffered evidence was available to plaintiff wh n he mC1tde his prior motion, renewal is unwarranted. NYC HA fu th r contends that in denying plaintiff's prior motion solely on gr un s that plaintiff failed to proffer a reasonable excuse for hi f ilure to timely file his notice fo claim, the Court correctly ap li d cohtrolling law. or the reasons that follow hereinafter, plaintiff's motion to is hereby granted and his application to reargue is denied. he instant ' action is for alleged personal injuries. Pl in iff'~ De er 27, 2013, alleges that on August 22, 2013, he tripped and fe l notice of claim, which he served upon defendants on on tbe pathway I crosswalk located at 365 East 18Yd Street, Plaintiff further alleges that he was caused to trip an fall ~y reason of a metal pipe-like fixture existing at the which Pl in if f I pipe constituted a hazard. contends that defendants who owned and maintained the i lo ation ~erein were negligent in allowing the pipe to exist and I th t egligence caused him to sustain injury. n June 23, 2014, this Court denied plaintiff's application se king an order, notite of inter alia, claim re sonable excuse for because his granting him leave to interpose a plaintiff failure Page 2 of to 14 file failed his to prof fer a notice of claim [* 3] FILED De 17 2014 Bronx County Clerk w'th'n the time period prescribed by law. Specifically, the court [p]laintiff, by counsel, avers - under a ·heading titled 'A Slight Delay in ~Pursuing a Claim Was Reasonable Due to Plaintiff's Physical Disabilities' - that the delay in timely filing a notice of claim was due to plaintiff's pursuit of extensive treatment. However, plaintiff offers nothing more on the issue of his disability, how it precipitated his ·incapacity, and how this incapacity : impeded his ability to file a timely :notice of claim. As discussed above, 1while physical incapacity is a cognizable excuse for failure to file a timely notice pf claim, any physical incapacity 1must medically corroborated with medical !evidence. ! T us, the Court, relying on precedent requiring denial of a pl'catiqns seeking leave to file a belated notice of claim when t e excuse proffered for such failure was a medical disability, but I I i whic disability, the proponent of such leave failed to support, deni d plaintiff's motion (Casale v City of New York, 95 AD3d 744, 744 1st pept 2012] excuse f dr not ["Petitioners failed to off er a serving a timely notice of reasonable claim. Indeed, i petitionens failed to submit any medical evidence supporting their asse tion that the injured petitioner's physical condition prevented ;them from timely serving a notice of claim."]; Mandia v County oi Westchester, 162 AD2d 217, 218 [1st Dept 1990] ["Petitiorjers failed to submit a medical affidavit by a physician or ot erwi~e to substantiate their claim that the delay in service Page 3 of 14 [* 4] FILED De 17 2014 Bronx County Clerk w s due to physical incapacity."] ) . pl~intiff m ti n To be sure, on the prior did not provide an affidavit detailing the nature o h's di$ability or why the same prevented him from timely filing a n tice : of claim. Based on the foregoing, the Court then d sm'ssed this action against all defendants, finding that absent t e iling of timely notice of claim or judicial leave to file the s me thijs action was afflicted by an incurable jurisdictional d fe t. Plaihtiff's motion to renew is hereby granted insofar as the e id nee submi tted on renewal, 1 tat c ai NYCH~ namely an affidavit, establishes had actual notice of the facts underlying plaintiff's wi "tthin the ninety days following his accident and that p ai tiff's failure to timely file his notice of claim was due to I m di al ipcapacity. I i well settled that a motion to renew shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate : that there has been a change in the law . that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior ·motion (CPLR § 2221 [e] [2], [3]). T us [a]n application for leave to renew must be based upon additional material facts Page 4 of 14 [* 5] FILED De 17 2014 Bronx County Clerk which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the Court. Renewal should be denied where a party ·fails to offer a valid excuse· for not submitting the additional facts upon the original application v: Roche, ( ol y 68 AD2d al hworld Corporation v. Wa~mart 2 04]; 558, 568 Gottlieb, [1st Dept 1979]; 12 AD3d 278, 279 see also [1st Dept Stores, Inc. v United States Fidelity and Guaranty c ny, A 114, 116 [1st Dept 2002]; Basset v Bando Sangsa Co., 103 AD2d ~1 72 8 AD3d 300, 301 [1st Dept 2004]; Linden v Moskowitz, 294 [1st ~and f il · ng tio Dept. 19 8 4] . Renewal is a remedy to be used granted only when there exists a valid excuse for submit the newly proffered facts on the original (Beiny v. Wynyard, 132 AD2d 190, 210 [1st Dept 1987]). f ct, nenewal should be denied where the party fails to offer a I exchse for not submitting the additional facts upon the o ig'nal application (Burgos v City of New York, 294 AD2d 177, 178 st I Deptl I ratidm, ['s 2002]; Chelsea Piers 281 AD2d 252, 252 nava~lable] Management v Forest Electric [1st Dept 2001]), and "the remedy where a party has proceeded on one legal theory on ssumption that what has been submitted is sufficient, afte.i+ t sought to move again on a different legal and argument beqause he was unsuccessful upon the original application" ol Page 5 of 14 [* 6] FILED De 17 2014 Bronx County Clerk Notwithstanding the foregoing, courts have nevertheless carved a e ceptiion to the general rule and a motions to renew will be i e~en g an ed when all requirements for renewal are not met 38 AD3d 809, e v Mui,, 811 ou ds ..qy 95 A.D.3d 1147 ial Hospital 1 97 ) . As such, of~ered Medical [2d Dept 2007], [2d Dept Center, 2012]; 240 abrogated on other Strong v AD2d (Bank 726, Brookhaven 726 [2d Dept motions to renew can be granted even when the evidence was in fact known and available to the i m va c b~t never provided to the Court ( Tishman Construction rp ration of New York v City of New York, 280 AD2d 374, 376 [1st D pt 2001u; Trinidad v Lantigua, 2 AD3d 163, 163 [1st Dept 2003]; I v Niirnni, 307 AD2d 870, 871 [1st Dept 2003]; U.S. Reinsurance c rp ration v Humphreys, 205 AD2d 187, 192 [1st Dept 1994]; J.D. S ru turesr Inc. v Waldbum, 282 AD2d 434, 436 [2d Dept 2001]; Sorto v So th i N~saau Community Hospital, 273 AD2d 373, 373-374 [2d Dept I 2 00 ; Cronwall Equities v International Links Development Corp., 2 5 I c. D2d 54, 355 [2d Dept 1998]; Goyzueta v Urban Health Planr 256 AD2d 307r 307 [2d Dept 1998]; Liberty Mutual Insurance C mp ny v' Allstate Insurance Company, 1 97 ) . t 237 AD2d 260, 262 [2d Dept Renewal with new evidence previously known and available m vant,- a departure from precedential case law and the statute - is thus, warranted if the interest of justice and substantial s bs antive fairness so dictate M tc lfe ~City of New York, (Trinidad at 163; Mejia at 871; 223 AD2d 410, Page 6 of 14 411 [1st Dept 1996]; [* 7] FILED De 17 2014 Bronx County Clerk v Brickhouse, 251 AD2d 397, Goyzweta at 307). b g antecl, [2d Dept 1998]; Strong at 397 Stated differently, a motion to renew can in the exercise of the court's discretion, even when ew e vidence proffered was readily available to the moving 1 p rt , su~h b en met t ~ provide that all requirements necessary for renewal have not including the failure to proffer an excuse for failing previously p ev · ous :motion me of the available and if considering the Court's prior known evidence new evidence decision with the changes the (Trinidad at 163; J.D. In J.D. Structures, Inc., the court granted a renewal of its p io when renewal after considering previously available evidence, b t hi ch while known to the movant, o ig'nal ~otion (id. at 435-436). motion seeking it did not submit on the The court had initially denied summary judgment on grounds of an according said relief because plaintiff failed to include e id nee felative to the debt owed, such evidence dispositive on t e I otiorji (id) . On renewal, plaintiff tendered evidence of the d bt owed averring that the failure to provide the same on the p io motji_on was the mistaken belief that the motion would be f~vcirably d~spite without such evidence (id.). The court granted plaintiff's failure to submit previously available e id nee, which was known to plaintiff on grounds that an excuse 1 h d een proffered for the failure to submit the same and because Page 7 of 14 [* 8] FILED De 17 2014 Bronx County Clerk t e ew e~idence, warranted judgment in plaintiff's favor (id.). S'mi rly, in Trinidad, the court granted renewal when the same was p em sed upon the submission of a previously known and available e pe t affidavit despite the fact that no excuse was proffered for t e ailute to previously submit the same (id. at 163). i Here( on renewal, plaintiff submits an affidavit wherein he a se ts that August 24, 2013, two days after he allegedly fell in f on NYCNA's premises, he spoke to a women, which he suspected was e pl yed by NYCHA. 1 a ci ent, s 1 Plaintiff conveyed the particulars of his showing this woman the pipe upon which he fell. In mber,2013, plaintiff spoke to a man, who he suspected was also yed by NYCHA, to whom he also conveyed the particulars of his ent;,showing this man the pipe upon which he fell. It was not u Aprtl 2014, that plaintiff confirmed that the people to whom h d sppken about his accident were in fact employed by NYCHA. p tiff came to learn that the man was George Perez and the woman enitf Zellner. Plaintiff also states that after his accident I s a ~esult of his injuries, he was prescribed pain medication, because i they caused him to sleep excessively, partially acitated him; preventing him from seeking legal counsel until Here~ it is true, as argued by NYCHA, that plaintiff could h ve submitted his affidavit on the prior motion, which affidavit Page 8 of 14 [* 9] FILED De 17 2014 Bronx County Clerk e ta clai~ t e a lish~s both actual notice to NYCHA of the facts constituting within ninety days of plaintiff's accident as well p aintiff's medical incapacity as the reason for his failure to t · mely file a notice of claim. However, as noted above, here, w er the: affidavit warrants reversal of a portion of this Court's p io order, even if the information sought was known and available t t e plrintiff on the prior motion, the interests of justice and s bs anti~l fairness nevertheless require that renewal be granted ri idad, at 163; Mejia at 871; A 2d 410,; 411 Metcalfe v City of New York, [1st Dept 1996]; Scott v Brickhouse, 251 AD2d 397, 3 7 [2d Qept 1998]; Strong at 726; Goyzueta at 307). gen~rally w il f r 223 Similarly, on renewal, there ought to be a reasonable excuse he failure to provide dispositive evidence on a prior motion, h re, even if as argued by NYCHA, plaintiff's reason for failing to ' I p i er n h~s affidavit on the prior motion is unreasonable, the same bar to renewal if, where as here, the interests of justice so w nt p nted~ (Trinidad 163 ["Under the particular circumstances the affidavit of plaintiff's expert, which plaintiff's counsel p at inexplicably failed to submit, was properly c ns'dered by the court on renewal."]). Because leave to file a belated notice of claim will be g an ed if (1) the claimant has a reasonable excuse for the failure t s rve a timely notice of claim; a tu l ( 2) the municipality acquired kriowledge of the essential facts Page 9 of 14 cons ti tu ting the claim [* 10] FILED De 17 2014 Bronx County Clerk w'th n 90 'days after it arose, or a reasonable time thereafter; and ( ) he delay in filing would not substantially prejudice the m ni ipality maintaining a defense on the merits (Jusino v New York C ty Housing Authority 255 AD2d 41, C ty of N~w 47 [1st Dept 1999]; Gerzel v York, 117 AD2d 549, 550 [1st Dept 1986]; Morrison v New 244 AD2d 487, Y rk City Health and Hospitals Corp., 487 [2d Dept 1 97 ), uwon renewal plaintiff's application must be granted. a re dy n1oted above, his excuse for failure to timely As file a n ti ed of claim is medical in nature and aptly supported by his a fi avit. (Casale at 744; Mandia at 218). More¢ver, whether the municipal defendant received knowledge o t e facts constituting the claim within 90 day of its occurrence o w thin, a reasonable time thereafter means "whether the public c rp ratictm a tu l or its attorney or its insurance kn1owledge of the essential facts carrier acquired constituting the claim w'th n the time specified in subdivision one or within a reasonable t'me thertafter" t at the ! ! (GML defendant § 50-e [ 5 J ) • acquired Thus, actual knowledge means knowledge of the essential facts f rm ng the basis of the negligence claim within 90 days of its o cu renc$, not simply knowledge that an accident occurred (Kim v C ty of N$w York, 256 AD2d 83, 84 [1st Dept 1998] k ow t edge~that [Court held that petitioner was injured when instructed by a teacher m ve a' large piece of plywood, was not tantamount to notice of p ti ioner's claim that respondents Page 10 of 14 "were negligent in not [* 11] FILED De 17 2014 Bronx County Clerk I p oviding petitioner with the mechanical means to move the plywood ad otheDwise in their supervision of petitioner's activities."]; attergoon v New York City Housing Auth., 161 AD2d 141, 142 [1st D pt 1990] ["What satisfies the statute is not knowledge of the w ong. What the statute exacts is notice of the claim (internal q otation marks omitted).]; Bullard at 450-451 H re, pl~intiff a cident : and [1st Dept 1986]). establishes that approximately two days after his then again 45 days thereafter, he gave specific d tails apout the accident and the defect alleged to two of NYCHA's Thus, plaintiff establishes actual notice to NYC HA w ·thin 90: days of the accident alleged. Lastly, contrary to NYCHA's assertion, plaintiff's affidavit I e ta lishes the absence of any prejudice to NYCHA by the belated f'li go~ plaintiff's notice of claim. With regard to prejudice, I rima~y purpose of the notice of claim requirement is to permit unicipality to conduct a prompt investigation of the facts and mst1nces out of which a claim arose while information is still ! andl readily available ( 0 'Brien at 358; Adkins v City of New rk, i 43, NY2d ' so far $S the r co strujction 346, 350 passage of the [ 197 7] ) , of time a delay often circumstances is often prejudicial "prevent [ s] existing at an the accurate time the a ci ent :occurred." (Vitale v City of New York, 205 AD2d 636, 636 d Dept '1994] [internal quotation marks omitted]). Similarly, a d lay can impact a municipal defendant's ability to "locate and Page 11 of 14 [* 12] FILED De 17 2Q14 Bronx County Clerk mi e wi:tnesses while their memories of the facts were still sh." (G;illiam v City of New York, 19 8] · see! also Kim at 84). 250 AD2d 680, 681 [2d Dept Thus, the proponent of an application to fi e a ijelated notice of claim must establish that the defendant ha n t been prejudiced by the delay in filing a timely notice of cl im (De~gado v City of New 39 AD3d 387, York, 388 [1st Dept Here, where it is alleged that NYCHA had notice of the ac id nt a(nd the non-transitory defect alleged a mere two days af er pla~n.tiff' s alleged accident the absence of prejudice by pl in iff'S belated filing is self-evident. otabjly, : lo ees to while NYC HA submits whom plaintiff affidavits alleges to have from both of the spoken his about id nt and both of whom, inter alia, deny any such conversation, h evid~nce does not warrant denial of the instant motion. At bet, suchl denials strike at the heart of the merit of plaintiff's While true, that leave to file a late notice of claim ht to bie denied when the claims are patently mertiless (Matter ! i Catheri~e G. ally t~ue, me itless, 1 v County of Essex, unless it is 3 NY3d 175, 179 [2004]), it is clear that the claims made are "a court entertaining an application to serve a late of 'claim will not examine the merits" of the claims made no v 302 Convent Ave. 11 -114 [lst Dept 2000]). Fund Corp., 272 AD2d 112, Rous. Dev. Here, where the denials by NYCHA' s loyees pre indeed troubling, it cannot be said that plaintiff's Page 12 of 14 [* 13] FILED De 17 2014 Bronx County Clerk cl im patently meritless. ased,on the foregoing, plaintiff's application for reargument is ied pS moot. le to no Pl a late notice of claim upon NYCHA is granted, the of ¢laim already served is deemed timely, nune pro tune, the d~emed sa de s~rve Upon renewal, plaintiff's application seeking timely served and accepted, and the complaint is amended to reflect compliance with GML § 50-e and PHL § 157. iff'~ motion, to the extent it sought identical relief I ag t defendant THE CITY OF NEW YORK (the City) is denied insofar as is clear that as to the City, plaintiff failed to establish en emenit to such relief. pl iff NYCHA' s affidavits establishing that any actual of the facts constituting this claim within 90 days of the no ac and This is particularly borne out by nt's occurrence was given to NYCHA and not the City. It is he RDERED that plaintiff's Notice of Claim, dated December 27, 20 3 e de~med timely filed and received by NYCHA, nune pro tune, ! I pl iff' Is complaint be deemed amended to reflect compliance with 50-~ and PHL § 157, and that same be deemed served, and ac epted. ' It is further RDERiED that the Clerk of the Court restore this action to the Cort's p~e-trial calendar as against NYCHA only. Page 13 of 14 It is further [* 14] FILED De 17 2014 Bronx County Clerk RDER.l:D that this action be transferred to Part 17, the Public I Au ho ities Part. RDE~D wi h Notide It is further that plaintiff serve a copy of this Decision and Order of Entry upon all parties within thirty ( 3 0) days he eo Da ed December 11, 2014 Bronix, New York '{/O_ /ff/~ Mitchell J. Danziger, ASCJ Page 14 of 14

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