Smith v City of New York

[*1] Smith v City of New York 2014 NY Slip Op 51004(U) Decided on June 23, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 23, 2014
Supreme Court, Bronx County

Chris Smith, Plaintiff(s),

against

The City of New York AND THE NEW YORK CITY HOUSING AUTHORITY, Defendant(s).



20671/14
Mitchell J. Danziger, J.

In this action for alleged personal injuries precipitated by a dangerous condition existing on the public sidewalk abutting real property, plaintiff moves seeking an order, inter alia, granting him leave to interpose a belated notice of claim upon defendants, deeming the same timely served nunc pro tunc, as if it had been served within 90 days of the aforementioned accident's occurrence. Defendant THE NEW YORK CITY HOUSING AUTHORITY (NYCHA) opposes the instant motion averring, inter alia, that plaintiff's excuse for failing to timely serve his notice of claim upon it fails as a matter of law.

For the reasons that follow hereinafter, plaintiff's motion is denied, and in the interests of judicial economy, this Court sua sponte dismisses the instant action against all defendants.

The instant action is for alleged personal injuries. Plaintiff's notice of claim, which he served upon defendants on December 27, 2013, alleges that on August 22, 2013, he tripped and fell on the pathway/crosswalk located at 365 East 183rd Street, Bronx, NY. Plaintiff further alleges that he was caused to trip and fall by reason of a metal pipe-like fixture existing at the aforementioned location, which pipe constituted a hazard. Plaintiff contends that defendants who owned and maintained the location herein were negligent in allowing the pipe to exist and that negligence caused him to sustain injury.

Pursuant to General Municipal Law (GML) § 50-e, the timely filing of a notice of claim is a statutory precondition to the initiation of personal injury suits against a municipality (O'Brien [*2]v City of Syracuse, 54 NY2d 353, 358 [1981]). GML §50-e(a [FN1] ) reads

In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply and be served with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate.

Thus, a party has 90 days from the date the claim arises to file a notice of claim and when a notice of claim is served beyond the required ninety-day period, without leave of court, it is deemed 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]; Van der Lugt v City of New York, 36 AD2d 915, 915 [1st Dept 1971]; Chikara v City of New York, 10 AD2d 862, 862 [2d Dept 1960], appeal dismissed 8 NY2d 1014 [1960]).

However, when a party fails to 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.

The court, therefore, has 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 [*3]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]; Morrison v New York City Health and Hospitals Corp., 244 AD2d 487, 487 [2d Dept 1997]).

With respect to a reasonable excuse for the delay in timely serving a notice of claim, 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 physical incapacity is a cognizable excuse for failure to file a timely notice of claim, any such incapacity must be established through the use of medical evidence (Casale v City of New York, 95 AD3d 744, 744 [1st Dept 2012] ["Petitioners failed to offer a reasonable excuse for not serving a timely notice of claim. Indeed, petitioners failed to submit any medical evidence supporting their assertion that the injured petitioner's physical condition prevented them from timely serving a notice of claim."]; Mandia v County of Westchester, 162 AD2d 217, 218 [1st Dept 1990] ["Petitioners failed to submit a medical affidavit by a physician or otherwise to substantiate their claim that the delay in service was due to physical incapacity."]).

While infancy - which tolls the statute of limitations (CPLR § 208), but does not toll the time within which 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 [*4]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 it 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 respect to whether the municipal defendant received knowledge of the facts constituting the claim within 90 day of its occurrence or within a reasonable time thereafter, GML § 50-e (5) provides, in pertinent part, that the court shall consider, "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, 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]).

Lastly, with regard to prejudice, since 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 at 358; Adkins v City of New York, 43 NY2d 346, 350 [1977]), 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). Thus, the proponent of an application to file a belated notice of claim must establish that the defendant has not been prejudiced by the delay in filing a timely notice of claim (Delgado v City of New York, 39 AD3d 387, 388 [1st Dept 2007])

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]).

GML § 50-i(1) states

No action or special proceeding shall be prosecuted or maintained against a city, county, town, village, fire district or school district for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city, county, town, village, fire district or school district or of any officer, agent or employee thereof, including volunteer firemen of any such city, county, town, village, fire district or school district or any volunteer fireman whose services have been accepted pursuant to the provisions of section two hundred nine-i of this chapter, unless, (a) a notice of claim shall have been made and served upon the city, county, town, village, fire district or school district in [*5]compliance with section fifty-e of this chapter, (b) it shall appear by and as an allegation in the complaint or moving papers that at least thirty days have elapsed since the service of such notice and that adjustment or payment thereof has been neglected or refused, and (c) the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based; except that wrongful death actions shall be commenced within two years after the happening of the death.

Thus, within a complaint, a plaintiff is required to plead that a notice of claim was served upon the defendant, that at least thirty days have elapsed since such service, and that the defendant has refused or neglected to adjust the claim (Davidson v Bronx Municipal Hospital, 64 NY2d 59, 62 [1984]; Cochrane v Town of Gates, 18 AD2d 1048, 1048 [4th Dept 1963]). The failure to plead the foregoing mandates dismissal of the complaint (id.), as does the failure to serve a timely notice of claim (Davidson at 62; McGarty v City of New York, 44 AD3d 447, 448 [1st Dept 2007]; Wollins at 31).

Here, plaintiff's application must be denied insofar as he fails to adequately establish a reasonable excuse for his failure to file his notice of claim within the time period prescribed by law, namely, within 90 days from the occurrence alleged. Specifically, plaintiff's notice of claim evinces that his accident occurred on August 22, 2013 but that he didn't serve the same upon the defendants until December 27, 2013, approximately four months, or 120 days later. Plaintiff, 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, while physical incapacity is a cognizable excuse for failure to file a timely notice of claim, any physical incapacity must medically corroborated with medical evidence (Casale at 744; Mandia at 218). Because plaintiff fails to offer any medical evidence to support his claim of incapacity, he, thus, fails to establish that his injury caused an incapacity which impeded the timely filing of a notice of claim. Furthermore, because plaintiff fails to establish a reasonable excuse for the belated filing of his notice of claim, his application seeking leave to interpose an untimely notice of claim must be denied. For this reason his application seeking leave to amend his complaint to reflect that he was granted leave to file a belated notice of claim must also be denied as moot.

Moreover, insofar as the filing of a timely notice of claim is a condition precedent to sue the municipal defendants herein and non-compliance requires dismissal (Davidson at 62; McGarty at 448; Wollins at 31), it is clear that plaintiff commenced this action absent compliance with GML § 50-e(a) and that this Court, thus, has no subject matter over this action (City of New York v Port Authority of New York and New Jersey, 284 AD2d 195, 195 [1st Dept 2001]). Since want of subject matter jurisdiction is a jurisdictional defect that cannot be waived (id.), and can, in fact, be raised at anytime, (Financial Industry Regulatory Authority, Inc. v Fiero, 10 NY3d 12, 17 [2008]), plaintiff could never successfully oppose any motion for his failure to timely serve a notice of claim to dismiss on the merits. The Court, therefore, sua sponte dismisses this action against the defendants, despite neither defendant having moved for dismissal. Here, it is abundantly clear that plaintiff has failed to establish subject matter jurisdiction because he failed to comply with GML § 50-e(a). Not only does he concede as much by counsel in his moving papers, but his complaint also establishes that he didn't served his notice of claim until a month after the expiration of the 90-day period prescribed by law. Since defendants are likely to make a motion seeking such relief and such motion will have to be granted, judicial economy militates in favor of dismissal. It is hereby

ORDERED that the complaint be dismissed as against all defendants, with prejudice. It is further

ORDERED that NYCHA serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty (30) days hereof

Dated : June 23, 2014

Bronx, New York

______________________________________

Mitchell J. Danziger, ASCJ Footnotes

Footnote 1:Public Housing Law § 157 not only mirrors the language of GML § 50-e, but incorporates it by reference making the filing of a notice of claim a condition precedent to suing NYCHA. Thus all case law governing GML § 50-e is applicable to all claims against NYCHA as well.