Dhu v New York City Hous. Auth.

[*1] Dhu v New York City Hous. Auth. 2014 NY Slip Op 50204(U) Decided on February 13, 2014 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 13, 2014
Supreme Court, Kings County

Ambrozine Dhu, Plaintiff,

against

New York City Housing Authority, Defendant.



9631/11



Steven C. Falkoff, Esq.

Rosenberg, Minc, Falkoff & Wolff LLP

Attorney for Plaintiff

122 East 42nd Street

New York, NY 10168-0068

Patrick Neglia, Esq.

Cullen & Dykman LLP

Attorney for Defendant

44 Wall Street

New York, NY

10005-2407

David I. Schmidt, J.

The following papers numbered 1 to 10 read herein:Papers Numbered

Notice of Motion/Cross Motion and

Affidavits (Affirmations) Annexed1-2;7-8

Opposing Affidavits (Affirmations)3;

[*2]Reply Affidavits (Affirmations)4-6;

Memorandum of Law9

Markotsis v Town of Oyster Bay,

Index No. 14057/97, entered Feb. 13, 199810

In this action to recover damages for personal injuries, the defendant New York City Housing Authority (the defendant) moves for an order, pursuant to CPLR 3211 (a) (7), to dismiss the complaint for failure to comply with Public Housing Law (PHL) § 157 (2) and General Municipal Law (GML) § 50-e on the basis that the notice of claim failed to identify the accident location (Seq. No. 2). The plaintiff Ambrozine Dhu (the plaintiff) cross-moves for an order, pursuant to GML 50-e (6), granting her leave to amend, nunc pro tunc, her notice of claim to include a more specific accident location (Seq. No. 3).

Facts and Allegations

According to the plaintiff's original notice of claim, she slipped and fell "at or about the parking lot of the premises located at the Henry Reid Houses, 728 East New York Avenue, Brooklyn, New York" (the building). In pretrial discovery, the defendant's witness (Jorge Martinez) testified that (1) the building housed senior residents, (2) it had a single adjoining parking lot with the capacity to hold about 40 vehicles, (3) there was only one public exit leading from the building to the parking lot, (4) the parking lot had only one entrance and exit, (5) the parking lot was surrounded by a fence, and (6) the parking lot was exclusively for the use of tenants and others who were permitted to park there. The plaintiff, at her GML 50-h hearing and at her pretrial deposition, testified that (1) she worked as a live-out home attendant to a building resident, (2) she had permission to use the parking lot, (3) the parking lot consisted of two sections that were designated for parking and one section that separated the parking sections from each other, (4) her car had been covered with snow when, in the evening of Jan. 27, 2011 (the date and time of her accident), she returned to the parking lot to retrieve it, (5) she shoveled the snow off and around her car to gain entrance, and (6) she slipped and fell on a pre-existing, snow-covered patch of ice before she could get into her car.

After discovery was completed and a note of issued was filed on July 12, 2012, the defendant timely moved for summary judgment, contending that (1) the plaintiff could not establish any negligence which was a substantial cause of the events which produced her injury, (2) the defendant neither created the allegedly dangerous condition nor had actual or constructive notice thereof, and (3) plaintiff's allegation that some "old snow and ice" caused her fall was based on rank speculation insufficient to support her claim (Seq. No. 1). By order, dated Jan. 17, 2013, Justice Wayne P. Saitta of this Court denied the defendant's motion, finding a question of fact as to constructive notice and the defendant's duty to remove snow and ice in the parking lot; specifically, whether the defendant was required to plow the entire parking lot or only its portion. By notice of appeal, dated Feb. 21, 2013, the defendant appealed Justice Saitta's order to the Second Department. By order, dated Sept. 5, 2013, the Second Department granted the defendant's motion to enlarge the time to serve [*3]and file a reply brief (see Dhu v New York City Hous. Auth., 2013 NY Slip Op 84376[U]). As of the date of this decision and order, the defendant's appeal to the Second Department remains pending.

Two months after Justice Saitta's denial of its summary judgment motion, the defendant served the instant motion, contending, for the first time in the course of this litigation, that her notice of claim inadequately described the place of her accident. The defendant maintains (in ¶ 17 of its counsel's opening affirmation) that the plaintiff has been "completely unable to identify where within the subject parking lot her accident allegedly occurred" (emphasis added). According to the defendant's opening papers, the plaintiff's failure to pinpoint the particular spot where she slipped and fell in the parking lot was prejudicial to the defendant, in that it deprived it of an opportunity to conduct a meaningful investigation into the plaintiff's accident. When the plaintiff, in response, pointed out that the defendant could not have been prejudiced because by the time it received the notice of claim, all snow and ice on the parking had already melted, the defendant produced, in its reply papers, two affidavits to support its alleged prejudice. The first affidavit is by the defendant's previously deposed witness (Jorge Martinez) who hypothesizes (in ¶ 7 of his Sept. 17, 2013, affidavit) that "[i]f plaintiff had identified the particular location of her accident in a timely fashion, I may have had a recollection of how the location appeared prior to the snow storm of January 26th and 27th, 2011." The second affidavit is by the defendant's outside investigator (Carlos Thomas) who, in inspecting the parking lot on Mar. 18, 2011 (precisely 50 days after the accident), photographed the entire parking lot, which, by then, was entirely clear of snow and ice (see Thomas Aff., Sept. [no date provided], 2013, ¶¶ 3, 5). According to the investigator's affidavit (in ¶ 6), "[w]ithout a detailed description of the accident location contained within the notice of claim, the defense was prejudiced as I was not able to identify the accident location and interview [the defendant's] personnel as to whether the snow and ice at said location was old.'" In response to the defendant's motion to dismiss, the plaintiff cross-moved for leave to amend her notice of claim to add a sentence that her accident occurred "on the side of the parking lot furthest away from and opposite to the street, and approximately 8-10 feet from the walkway that leads from the building to the parking lot, and in the area between the cars parked."

Discussion

Pursuant to PHL 157 (2), the plaintiff must comply with GML 50-2 (e), which requires that a notice of claim set forth, inter alia, "the place where . . . the claim arose." Over a century ago, the Court of Appeals held that a notice of claim need not describe the place of the accident with "literal nicety or exactness" (Purdy v City of NY, 193 NY 521, 523 [1908]). Rather, as the Court of Appeals later explained: "The test of the sufficiency of a Notice of Claim is merely whether it includes information sufficient to enable the [municipal authorities] to investigate. . . . [I]n determining compliance with the requirements of General Municipal Law § 50-e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant's description municipal authorities can locate the place, fix the time and understand the nature of the accident."

(Brown v City of NY, 95 NY2d 389, 393 [2000] [internal quotation marks and citations omitted]). [*4]

Accidents in municipal parking lots (or fields) have carved out a niche in the Second Department's notice-of-claim jurisprudence.[FN1] The Second Department has been inhospitable to a generalized description of the place of the accident as: (1) "a parking lot" with no mention of the street address or the nearby streets (see Barrett v Town of Ossining, 26 AD3d 453, 454 [2006]); (2) "[t]he parking lot area located at the Bellmore, LIRR station, more particularly the parking lot field ID #B-2, on Sunrise Highway, between Bellmore Avenue and Bedford Avenue, County of Nassau, State of New York" (Gellos v Town of Hempstead, 284 AD2d 370 [2001]);[FN2] (3) "the parking lot as east of Route 107 between E. Nicholai Street and E. Marie Street" (Markotsis v Town of Oyster Bay (261 AD2d 451, 451 [1999]); (4) "the exit way of the Municipal Parking Field designated Number LV-2 located in Locust Valley" (Earle v Town of Oyster Bay, 247 AD2d 357, 358 [1998]); (5) "the picnic area adjacent to the parking area" at Heckscher State Park where a park map showed a number of picnic areas located adjacent to parking lots at various locations scattered throughout the park (see Schneider v State, 234 AD2d 357, 357 [1996]); and (6) "the parking lot at Cooper Street and Washington Street, Hempstead, New York," because there were "four parking lots located at or near the named intersection" (Smith v Village of Hempstead, 143 AD2d 897, 897-898 [1988]).

In view of the paucity of facts set forth in the Second Department's memorandum decision in Markotsis on which the defendant principally relies, this Court reviewed the record on appeal and the decision below.[FN3] In Markotsis, the Town of Oyster Bay moved pre-Note of Issue for summary judgment on its affirmative defense that the notice of claim was inadequate. The lower court denied the motion, finding that, although there were 18 parking lots in the Hicksville area, the defendant failed to specify the number of parking lots between E. Nicholai Street and E. Marie Street — the place of the injured plaintiff's accident (see Markotsis v Town of Oyster Bay, index No. 14057/97, order, entered Feb. 13, 1998, at 2). On appeal, the Second Department, in reversing the lower court, held that: [*5] "The plaintiffs' notice of claim failed to state with sufficient particularity the site of the accident to enable the Town to locate the defect, conduct a proper investigation, and assess the merits of the claim. Furthermore, although the plaintiffs were given an opportunity to provide more specific information, the additional information was inadequate to correct the defect in the notice of claim. Under the circumstances, the [lower court] erred in denying the defendant's motion for summary judgment dismissing the complaint."

(Markotsis, 261 AD2d at 451 [internal citation omitted]).

In contrast to the foregoing line of cases, the Second Department held that the statutory requirement was satisfied when the notice of claim was able to place the accident within the confines of the parking lot. The following locations were held to be adequate for notice-of-claim purposes: (1) "approximately 30 yards from a stop sign governing traffic leaving the parking lot, which is near a traffic circle" (Rutto v County of Westchester, 298 AD2d 450, 450 [2002] [incorporating the claimant's testimony at a GML 50-h hearing]); (2) "approximately 12-13 parking spaces from the entrance to the parking lot closest to the club entrance" (Butler v Town of Smithtown, 293 AD2d 696, 697 [2002]); (3) although the original notice of claim incorrectly stated that the alleged defect was located "adjacent to 440 Neptune Avenue," when, in fact, the alleged defect was adjacent to a parking lot next to 440 Neptune Avenue and located at 2940 Ocean Parkway, leave to amend a notice of claim was granted "since the plaintiff gave the exact location of the accident with measurements, although not required to do so" (Kaminsky v City of NY, 238 AD2d 380, 380 [1997]); (4) "an empty lot occasionally used for parking, located between Beach 29th St., and Beach 30th St., and Lewmay Road and the Boardwalk/beach, Far Rockaway, NY and more particularly approximately 140 feet from a hydrant on Beach 29th St., 130 feet from the boardwalk, 77 feet from Lewmay Road" (Herrera v City of NY, 211 AD2d 759, 760 [1995]); and (5) "the sidewalk on Broadway between 72nd and 73rd Streets, at the curb cut to the parking lot of the A & P Supermarket in Jackson Heights, New York" (Cruz v City of NY, 95 AD2d 790, 791 [2d Dept 1983]).

The necessary import of the Second Department's decisions is that a description of the outer boundaries of a parking lot as the accident location does not satisfy the statutory notice requirement. Here, the defendant has met its burden of establishing that the plaintiff's original notice of claim did not substantially comply with the statutory requirement because it did no more than describe the parking lot's boundaries.

Nevertheless, pursuant to GML 50-e (6), "[a]t any time after the service of a notice of claim and at any stage of [this] action . . ., a mistake, omission, irregularity or defect made in good faith in the notice of claim . . . 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 defendant does not contend that the plaintiff's insufficient description of the accident location as the parking lot was made in bad faith, and the record does not support the defendant's contention that it would be prejudiced by the proposed amendment. Three reasons compel this conclusion. First, the plaintiff's testimony both at her GML 50-h examination and at her pretrial deposition sufficiently identified the portion of the parking lot in which she allegedly slipped and fell (see Vallejo-Bayas v New York City Tr. Auth., 103 AD3d 881, 883 [2d Dept 2013]; Ming v City of NY, 54 AD3d 1011, [*6]1012 [2d Dept 2008]).[FN4] Second, where the accident-causing condition (here, ice) is extremely transitory, the defendant is hard-pressed to demonstrate that it was prevented from carrying out a physical inspection by not having been timely informed of the accident's precise location, as the accident-causing condition could not have existed by the time a notice of claim was filed and an inspection was conducted (see Matter of Harris v Dormitory Auth. of State of NY, 168 AD2d 560, 560-561 [2d Dept 1990]; Rosenblatt v City of NY, 160 AD2d 927, 928 [2d Dept 1990]). Finally and crucially, the plaintiff's original notice of claim did not in any way mislead the defendant. Based on the plaintiff's description therein, the defendant was able to locate the place, fix the time, and understand the nature of her accident — a reliable indicator that the purpose served by her original notice of claim was fulfilled — and move for summary judgment on the merits. Under the circumstances, to deny the plaintiff leave to amend her original notice of claim to provide greater particularity would defeat an apparently honest claim and, as a policy matter, would afford no needed protection to the defendant against a dishonest claim (see Schwartz v City of NY, 250 NY 332, 335-336 [1929]; Shea v Incorporated Village of Head of the Harbor, 180 AD2d 675, 677 [2d Dept 1992]).

Conclusion

The defendant's motion to dismiss is denied, and the plaintiff's cross motion for leave to amend her original notice of claim is granted. The plaintiff's amended notice of claim, as annexed to her cross motion under Exhibit B, is deemed granted retroactively to the date of service of her original notice of claim.

The parties are reminded of their next scheduled appearance in the Settlement Conference Part on Feb. 18, 2014.

This constitutes the decision and order of the Court.

E N T E R,

J. S. C. Footnotes

Footnote 1:Other departments rarely addressed this issue and, when they did, reached opposite conclusions (compare Heffelfinger v Albany Intl. Airport, 43 AD3d 537, 539 [3d Dept 2007] [leave to serve a late notice of claim denied for lack of timely notice of the accident location by the respondent; the accident specified the location only by naming the parking lot where the accident occurred, and, in his affidavit, petitioner conceded that for each row in that lot, there were two possible places where the accident could have occurred] with Greene v Rochester Hous. Auth., 273 AD2d 895 [4th Dept 2000] [leave to serve a late notice of claim granted where the claimant "allege(d) that defendant was negligent in designing the parking lot in such a way as to allow snow and ice to accumulate around a drain, and in clearing snow and ice only during the week and not on weekends."]).

Footnote 2:The description of the accident location is taken from the lower court's decision and order, dated Aug. 29, 2000 (Sup Ct, Nassau County, index No. 015816/97). The lower court decision and order is available online at http://decisions.courts.state.ny.us/10jd/nassau/decisions/index/ index_2000/franco/2000aug/015816-97.pdf (last accessed Feb. 11, 2014).

Footnote 3:The record on appeal in Markotsis is available on microfiche (No. 2-99-0705) in the Brooklyn Supreme Court Law Library.

Footnote 4:See Dhu GML 50-h Tr at 18:6-16, 18:22-24, 19:5-16, 23:11-15, 24:6-10, 27:19-28:14, 38:14-19, 38:19-22, 39:19-25, and 41:4-12. See also Dhu EBT Tr at 34:2-7, 35:21-36:5, 37:18-21, 37:22-38:4, 44:6-21, 85:12-14, 85:23-86:11, 86:19-22, 88:7-12, 89:2-9, 90:13-23, 91:5-11.