Gaye v Pham

[*1] Gaye v Pham 2014 NY Slip Op 50332(U) Decided on March 4, 2014 Supreme Court, Bronx County Danziger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 4, 2014
Supreme Court, Bronx County

Mohammad Gaye, AN INFANT BY HIS MOTHER AND NATURAL GUARDIAN, YACINE CISSE, SALMA GAYE, AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, YACINE CISSE AND YACINE CISSE, INDIVIDUALLY, Plaintiff(s),

against

Haanh N. Pham, BOARD OF MANAGERS OF THE PARKCHESTER NORTH CONDOMINIUM, PARKCHESTER NORTH CONDOMINIUM, INC., PARKCHESTER PRESERVATION MANAGEMENT, LLC, MONTEFIORE COMPREHENSIVE FAMILY CARE CENTER, MONTEFIORE MEDICAL CENTER, Defendant(s).



350189/13

Mitchell J. Danziger, J.

In this action for personal injuries allegedly sustained by exposure to hazardous lead levels within a premises, plaintiffs move seeking an order, inter alia, granting them leave to interpose a belated notice of claim asserting claims against non-party THE CITY OF NEW YORK (the City) and two of its agencies. Plaintiffs also seek leave to amend their complaint to name the City and two of its agencies as defendants. Plaintiffs aver that leave to interpose a late notice of claim is warranted because here, plaintiffs MOHAMMAD GAYE (Mohammad) and SALMA GAYE (Salma) are infants, who by virtue of their infancy have had the statute of limitations for the instant action tolled. More importantly, plaintiffs argue, leave to file a belated notice of claim is warranted because the City had actual notice of the alleged claims against it at or near the time they accrued. Plaintiffs further argue that leave to amend their complaint to add the City and its two agencies is warranted because the claims asserted in their proposed amended complaint have merit and the City will not be prejudiced thereby. The City opposes the instant motion averring that leave to file a late notice of claim should be denied insofar as the claims asserted against it are meritless. Moreover, the City argues that leave to file a late notice of claim on behalf of plaintiff YAACINE CISSE (Cisse) is being sought after the expiration of the applicable statute of limitations for her claims and as such, the application cannot be granted. With respect to Mohammad and Salma, the City contends that leave to file a late [*2]notice of claim should be denied because the City did not have notice of the claims asserted until the instant motion was made, plaintiffs offer no cognizable reason for the delay in timely filing a notice of claim, and if the motion is granted, the City will be prejudiced thereby. Because the motion to file a belated notice of claim should be denied, the City argues that plaintiffs' application to amend its complaint to name the City as a party should also be denied.

For the reasons that follow hereinafter, plaintiffs' motion is denied.

The instant action is for alleged personal injuries stemming from elevated lead levels within a residential premises. Plaintiffs' proposed amended complaint alleges that beginning on March 16, 2004 and continuing thereafter, Mohammad, while a resident within 1579 Metropolitan Avenue, Apartment #10F, Bronx, NY (1579) was poisoned by lead. It is also alleged that beginning on July 30, 2009 and continuing thereafter, Salma, also a resident at 1579 was also poisoned by lead. Plaintiffs allege that 1579 was owned, operated and managed by defendants HAANH N. PHAM (Pham), BOARD OF MANAGERS OF THE PARKCHESTER NORTH CONDOMINIUM (Board), PARKCHESTER NORTH CONDOMINIUM, INC. (Condominium), AND PARKCHESTER PRESERVATION MANAGEMENT, LLC. (Preservation). Plaintiffs allege that defendants were negligent in allowing a dangerous and unsafe lead condition to exist at 1579 and that said negligence caused injuries to both Mohammad and Salma. Plaintiffs allege that Mohammad and Salma sought treatment for their lead poisoning with defendants MONTEFIORE COMPREHENSIVE FAMILY CARE CENTER and MONTEFIORE MEDICAL CENTER but that such treatment departed from accepted standards of medical care resulting in further injury. As against the City, the complaint alleges that the City owned, managed, and operated 1579 and failed to abate the unsafe lead condition existing thereat. Specifically, plaintiff alleges that the City and its agencies are charged with inspecting premises when notice of an unsafe lead condition is received and must, therefore, ensure that such lead condition is abated. The complaint alleges that the City either did not test or negligently tested 1579 for elevated lead levels and therefore failed to ensure that the lead levels existing therein were abated. This failure, plaintiffs' allege contributed to Mohammad and Salma's injuries. Yacine, as parent and natural guardian, interposes a claim for loss of services.

It is well settled that a late notice of claim filed absent leave of court is a nullity (Wollins v New York City Bd. of Educ., 8 AD3d 30, 31 [1st Dept 2004]; De La Cruz v City of New York, 221 AD2d 168, 169 [1st Dept 1995]). However, when a party fails to [*3]timely file a notice of claim GML § 50-e(5), allows a late filing with leave of court. GML § 50-e(5) reads

In determining whether to grant [a claimant] 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 consider all other relevant facts and circumstances including: whether the plaintiff was an infant or mentally or physically incapacitated . . . and whether the delay substantially prejudiced the public corporation in maintaining its defense on the merits.

Thus, the Court has the discretion to allow a late filing after considering, whether (1) the claimant has a reasonable excuse for the failure to serve a timely notice of claim; (2) the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after it arose, or a reasonable time thereafter; and (3) whether the delay would substantially prejudice the municipality maintaining a defense on the merits (Jusino v New York City Housing Authority 255 AD2d 41, 47 [1st Dept 1999]; Gerzel v City of New York, 117 AD2d 549, 550 [1st Dept 1986]; Matter of Morrison v New York City Health and Hospitals Corp., 244 AD2d 487, 487 [2d Dept 1997]).

Generally, "in order to obtain leave to serve a late notice of claim under subdivision 5 of section 50-e of the General Municipal Law, a party must give a satisfactory explanation for his delay" (Rodriguez v City of New York, 86 AD2d 533, 533 [1st Dept 1982]; see also Sarti v City of New York, 268 AD2d 285, 285 [1st Dept 2000] [Petitioner's application for leave to file a late notice of claim denied when her reason for the failure to timely file was a lacked of knowledge of her son's death. Court rejected her excuse insofar as "nowhere [did] petitioner actually describe her attempts to investigate."]; Aviles v New York City Health and Hospitals Corp., 172 AD2d 237, 238[1st Dept 1991]). Thus, the absence of a reasonable excuse for the delay in timely filing a notice of claim requires denial of the application (Aviles at 238), as does the wholesale failure to explain the delay (Perkins v New York City Health and Hospitals Corp., 167 AD2d 150, 151 [1st Dept 1990]). Law office failure has been deemed an unreasonable excuse for failure to timely file a notice of claim (Seif v City of New York, 218 AD2d 595, 596 [1st Dept 1995]; Bullard v City of New York, 118 AD2d 447, 450 [1st Dept 1986]).

Moreover, while infancy - which tolls the statute of limitations (CPLR § 208), but does not toll the time within which [*4]to file a notice of claim (see generally, Harris v City of New York, 297 AD2d 473 [1st Dept 2002]; Ali v Bunny Realty Corp.,253 AD2d 356 [1st Dept 1998]) - is a factor that the court should consider on an application for leave to file a belated notice of claim (Williams v Nassau County Med. Ctr., 6 NY3d 531, 537-538 [2006]). While it is now well settled that a plaintiff seeking leave to file a late notice of claim need not establish a nexus between his/her infancy and the delay in timely filing (id. at 538; Ali at 357), the court should nevertheless determine whether the infancy played a role in the failure to timely file a notice of claim (Williams at 538 ["A delay of service caused by infancy would make a more compelling argument to justify an extension. Conversely, the lack of a causative nexus may make the delay less excusable, but not fatally deficient. It all goes into the mix."]). Stated differently, infancy does not, in and of itself "compel the granting of a petition for leave to serve a late notice of claim" (Sparrow v Hewlett-Woodmere Union Free School Dist., 110 AD3d 905, 905 [2d Dept 2013]; Contreras v 357 Dean Street Corp.,77 AD3d 604, 605 [2d Dept 2010), but can, if proffered as the excuse for the delay, militate in favor of finding a reasonable excuse for the delay (Williams at 538).

With regard to notice of the claim, GML § 50-e (5) provides, in pertinent part, that 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." Actual knowledge means that the defendant acquired knowledge of the essential facts forming the basis of the negligence claim within 90 days of its occurrence, not simply knowledge that an accident occurred (Kim v City of New York, 256 AD2d 83, 84 [1st Dept 1998] [Court held that knowledge that petitioner was injured when instructed by a teacher to move a large piece of plywood, was not tantamount to notice of petitioner's claim that respondents "were negligent in not providing petitioner with the mechanical means to move the plywood and otherwise in their supervision of petitioner's activities."]; Chattergoon v New York City Housing Auth., 161 AD2d 141, 142 [1st Dept 1990] ["What satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the claim (internal quotation marks omitted).]; Bullard at 450-451 [1st Dept 1986]). Accordingly, that the municipal defendant has records in its possession demonstrating injury, is by itself insufficient to establish that it had actual knowledge of the claim within 90 days of its occurrence (Williams at 537 ["We disagree with plaintiff's suggestion that because defendants have medical records, they necessarily have actual knowledge of the facts constituting the claim. Merely having or creating hospital records, without more, [*5]does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process."]; Kelley v New York City Health & Hosps. Corp., 76 AD3d 824, 827 [1st Dept 2010]).

The primary purpose of the notice-of-claim requirement is to permit the municipality to conduct a prompt investigation of the facts and circumstances out of which a claim arose while information is still fresh and readily available (O'Brien v City of Syracuse, 54 NY2d 353, 358 [1981]; Adkins v City of New York, 43 NY2d 346, 350 [1977]). Thus, a delay is often prejudicial insofar as the passage of time often "prevent[s] an accurate reconstruction of the circumstances existing at the time the accident occurred." Vitale v City of New York, 205 AD2d 636, 636 [2d Dept 1994] [internal quotation marks omitted]). Similarly, a delay can impact a municipal defendant's ability to "locate and examine witnesses while their memories of the facts were still fresh." (Gilliam v City of New York, 250 AD2d 680, 681 [2d Dept 1998]; see also Kim at 84).

It is well settled that an application seeking leave to file a late notice of claim made after the expiration of the applicable statute of limitations must be denied (Pierson v City of New York, 453 NY2d 950, 954 [1982] [An "application for the extension (to file a late notice fo claim) may be made before or after the commencement of the action but not more than one year and 90 days after the cause of action accrued, unless the statute has been tolled."]; Robinson v Board of Educ. of City School Dist. of City of New York, 104 AD3d 666, 667 [2d Dept 2013]). It is equally well settled that if the claims underlying an application for leave to file a late notice of claim are patently meritless, the application must be denied (Catherine G. v County of Essex, 3 NY3d 175, 181 [2004] ["Because petitioner's claims were patently without merit, the motion court should have denied leave to file a late notice of claim."]; Bailey v City of NY Hous. Auth., 55 AD3d 443, 443 [1st Dept 2008]).

It has long been held that "an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public"(McLean v City of New York, 12 NY3d 194, 199 [2009]; Garrett v Holiday Inns, 58 NY2d 253, 261-262 [1983]; Laratro v City of New York, 8 NY3d 79, 82-82 [2006]; Pelaez v Seide, 2 NY3d 186, 198-199 [2004]; Lauer v City of New York, 95 NY2d 95, 100-101 [2000]; Kircher v City of Jamestown, 74 NY2d 251, 255-257 [1989]; Cuffy v City of New York, 69 NY2d 255, 260 [1987]). However, liability against a municipality stemming [*6]from negligence in the performance of a governmental function will lie if there exists a "special relationship between the plaintiff and the governmental entity" (Pelaez at 198-199). A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation (Pelaez at 199-200; Garrett at 261-262). With respect to the second way in which a special relationship can be formed, the proponent seeking to establish the assumption of a duty by the municipality must prove that (1) the municipality had, through promises or actions, assumed an affirmative duty to act on behalf of the party who was injured; (2) the municipality's agents had knowledge that inaction could lead to harm; (3) there was some form of direct contact between the municipality's agents and the injured party; and (4) the injured party justifiably relied on the municipality's affirmative undertaking (Cuffy at 260).

Preliminarily, plaintiffs' application for leave to file a belated notice of claim is denied insofar as the claims plaintiffs seek to assert against the City are patently meritless (Catherine G. at 181; Bailey at 443). A review of plaintiffs' proposed notice of claim evinces that contrary to the allegations in the amended complaint, the claims against the City are not premised on the City's ownership or maintenance of the property, but rather on the City's failure to

protect tenants and specifically the infants from exposure to lead substances and/or exposed, chipping, deteriorating and/or peeling lead paint or dust or debris that there was a failure to abate the nuisance and a failure to remove the infants from the toxic environment.

In fact, the very evidence tendered by plaintiffs in support of the instant motion - the abatement notices issued by the City in 2007 and 20012 - evince that 1579 was owned and or managed by Pham and or Condominium and not the City. Moreover, Yacine's affidavit, submitted by plaintiffs in support of the instant motion, states that she seeks to sue the City because the City "negligently assessed the Apartment to be lead free in 2007." Thus, here, it is clear that the claims against the City are solely premised on the City's purported failure to ensure that the allegedly hazardous lead condition was properly abated pursuant to Public Health Law [*7]§§1370-1376-a[FN1].

Accordingly, plaintiffs seek to sue the City for its failure to perform or for the negligent performance of the governmental function imposed by the Public Health Law and the Rules of City of New York as they pertain to lead abatement in the buildings within its jurisdiction. However, as discussed at length above, an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public (McLean at 199 [2009]; Garrett at 261-262; Laratro at 82-82; Pelaez at 198-199; Lauer at 100-101 ; Kircher at 255-257; Cuffy at 260). Here, plaintiffs neither plead nor assert that a special duty between itself and the any of the City's agencies existed. For this reason alone, they fail to establish the existence of a viable cause of action against the City and therefore leave to file a late notice of claim is denied.

The foregoing notwithstanding, given the record submitted by the parties, it is clear that there was never a special duty between the plaintiffs, the City or its agencies. First, whether the Lead Poisoning Prevention Act confers a private right of action (meaning that the plaintiff is one of the class for whose particular benefit the statute was enacted), such that it allows a plenary action when the act is violated has been answered in the negative by the Court of Appeals (Pelaez at 201). In Pelaez the Court of appeals held that the creation of a private right of action for a municipality's violation of the Public Health Law concerning lead abatement would be inconsistent with the legislative scheme (id. at 201). Thus, the court in Pelaez held that to the extent that no private right of action is available for violations of the Lead Poisoning Prevention Act, no special relationship may be asserted solely upon violation of the act. Second, nothing within the proposed amended complaint, the proposed notice fo claim, or any of the evidence tendered establishes that the City or any of its agencies voluntarily assumed a duty to abate the lead condition alleged such that the City generated justifiable [*8]reliance by the plaintiffs (Pelaez at 199-200; Garrett at 261-262). Nothing proffered by the plaintiffs establishes, as they must that (1) the City, through promises or actions, assumed an affirmative duty to act on behalf of the plaintiffs; (2) the City's agents had knowledge that inaction could lead to harm; (3) there was some form of direct contact between the City's agents and the plaintiffs; and (4) the plaintiffs justifiably relied on the City's affirmative undertaking (Cuffy at 260).

Accordingly, because, here, plaintiffs have utterly failed to establish the existence of a special duty - an element essential to their cause of action against the City - leave to file a belated notice of claim must be denied.

Notwithstanding the foregoing, leave to file a belated notice of claim must also be denied because plaintiffs fail to proffer a cognizable reasonable excuse for the failure to file a timely notice of claim, fail to establish that the City had actual notice of the claim within 90 days of the cause of action's accrual, or that City won't be prejudiced were the Court to grant plaintiffs' application. First, plaintiffs' excuse - that it was not apprized about the City's potential liability until September 25, 2013, when they received a letter from Pham - is nothing short of inexcusable law office failure (Seif at 596; Bullard at 450). After all, counsel could and should have made a determination about the City's alleged liability upon his retention. Even then, plaintiffs offer no excuse whatsoever for the failure to file a timely notice of claim despite being aware that the City had inspected 1579 in July 27, 2007 and June 5 2012, more than six years from the former and one year from the latter (Perkins at151). To the extent that plaintiffs seek to use infancy as an excuse for the failure to timely file, here infancy cannot be an excuse insofar as the action was brought by Yacine, who was or should have been aware of the City's purported negligence in 2012, in June 2012, approximately five years after the City's inspection, as per the medical records submitted by plaintiffs, both Mohammad and Salma had elevated lead levels in their blood. Second, contrary to plaintiffs' assertion, that the City, by virtue of inspection and lead abatement orders had records of the elevated lead levels existing at 1579 is not tantamount to knowledge of all facts constituting the instant claim (Bullard at 450-451); Williams at 537). Lastly, that the City would be prejudiced by an action alleging negligence stemming from an incident accruing in 2007 and 2012, more than six years from the former and more than two years from the ladder is self evident since as noted above, the purpose of the notice-of-claim requirement is to permit the municipality to conduct a prompt investigation of the facts and circumstances out of which a claim arose while information is still fresh and readily available [*9](O'Brien at 358; Adkins at 350).

Since leave to serve a belated notice of claim has been denied, and a notice of claim is a condition precedent to sue the City (Stiff v City of New York, 2014 NY Slip Op 01160 *1 [2d Dept 2014]), plaintiffs' application for leave to amend their complaint is also denied.

To the extent that plaintiffs seek records regarding 1579 from the City, based on the foregoing, that application is also denied and those records should be obtained using the non-party discovery provisions promulgated by the CPLR. The Court, notes however, that the City did in fact provide a rather voluminous set of records, purported to be those evincing its inspections of 1579 in 2007 and 2012. It is hereby

ORDERED that the City serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof

Dated : March 4, 2014

Bronx, New York

______________________________________

Mitchell J. Danziger, ASCJ Footnotes

Footnote 1: Public Health Law § 1370-a (1) requires the Department of Health "exercise any and all authority" to create programs that establish and coordinate activities to prevent lead poisoning and minimize the risk of exposure to lead. In compliance with its obligation under the Public Health Law, the City enacted 24 RCNY 173.13(d)(2), which requires that the City Department of Health order the abatement of lead paint hazards when "there is a child under 18 years of age with a blood-lead level of 20 micrograms per deciliter or higher residing in any dwelling."