Royal Day Care LLC v PB 2180 Pitkin Ave LLC

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Royal Day Care LLC v PB 2180 Pitkin Ave LLC 2018 NY Slip Op 32949(U) November 8, 2018 Supreme Court, Kings County Docket Number: 505104/2018 Judge: Reginald A. Boddie Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 505104/2018 '" "'~ ~DOC. NO. 94 NYSCEF RECEIVED NYSCEF: 11/27/2018 At LA.S. Part 7 of the Supreme Court of the State of New York, hel9 in and for the County of Kings, at the Courthouse, located at 360 Adams Street, Borough of Brooklyn, City and State of New York, on the 8th day of November 2018. " PRESENT: Honor~ble Reginald A. Boddie Justice, Supreme Court --------------------------------------------:--------------~-------x ROYAL DAY CARE LLC, Index No. 505104/2018 Cal. No. 42 Plaintiff, DECISION AND ORDER -against- fJ/<Jt. PB 2180 PITKIN AVE LLC, PHILIP R. BALDEO, NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, NEW YORK CITY FIRE DEPARTMENT, S~. Y Defendants. --------------~--~----------------------------------------------:-x I. Recitation, as required by CPLR motion: . S 2219 (a); of the papers considered in the review. of this \. Papers Numbered Notice of Motion & Annexed Affirmation! Affidavits Affirmation in Opposition 3 1-2 Upon the foregoing cited papers, and after oral argument, the decision and order on . plaintiffs motion to renew, pursuant to CPLR 2221 (e), the July 26,2018 decision and order. of the Honorable Reginald A.. Boddie is as follows: . Plaintiff is seeking to renew its application for leave to file a late notice of claim. On July 26,2018, plaintiffs " motion was denied as untimely. Specifically, the Court found that plaintiff. 1 1 of 5 [* 2] INDEX NO. 505104/2018 "- NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 11/27/2018 ,~~~ . failed to'seek leave to file a late notice of claim within one year and ninety days of the accrual of p1aintift: s cause of action. On or about June 25, 2014, plaintiff, a child daycare provider, entered into a lease agreement for the premises located at 2186-2188 Pitkin Avenue, in Brooklyn, with defend~nt PB 2180. Plaintiff avers, prior to its tenancy, this property Was used to run a daycare which was involved in a criminal scheme to defraud the City. This scheme, known as Operation Pay Care, ran from 2007 t02010, and included bribing City employees to overlook fire safety violations . . which would have precluded the issuance or renewal of permits. Carlos Montoya, a former 'supervising fire inspector, in furtherance of this scheme, issued fravdulent certificates of occupancy in 2012, to the plaintiff s predecessor lessee to run a daycare on the premises. Shortly after plaintiff s lease commenced in July 2014, plaintiff discovered flooding in I' the basement. On February 26, and March 19,2015, defendant New York City Department of Health and Mental Hygiene (DOHMH) issued permits to plaintiff to operate a daycare, which plaintiff thereafter allegedly did. In July 2015, plaintiff discovered that the flooding in the basement was occurring because raw sewage was backing up from a waste line that was illegally connected to the storm sewer. The property was subject to ongoing leaks and flooding. In August 2015, plaintiff contacte~ defendants PB 2180 and Baldeo and demanded "that the sanitary waste from the bathroom be legally connected to the storm line to stop raw sewage backing up along with the storm water." On or about March24, 2017, DOHMH renewed plaintiffs operating permits. In August 2017, a bathroom ceiling collapsed prompting plaintiff to call a plumber. On November 6, 2017, J a plumb~ng inspection revealed vioiations of the 1986 Administrative Building Code. On 2 2 of 5 ,-~ ~,.,.. [* 3] INDEX NO. 505104/2018 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 11/27/2018 ~, , \. ~ December 8, 2017, plaintiff ceased. operating the daycare, in part, because defendants PB 2180 , -I and Baldeo failed to legally connect the storm line and the plumbing was not installed to Building Code standards. On Dece~ber 15,2017, an engineering inspection revealed significant structunil flaws and recommended a Code compliance study. On February 6, and March 12, 2018, the New York City Department of Buildings (DaB) issued violations for the building. Plaintiff alleges defendants DOHMH, DaB, and FDNY are Hable for fraud in the inducement, .~ \ neglig;~tmi,srepresentation,: n,gligence, grOS,Snegligen~e, and priv.ate ~~isance for issuing .... '~ , \. permIts Jor.... the premIses whIch should never have been Issued and 1n falhng to detect code :--..... ", "):,'. . .- " "-J,., violations prior to December 2017 . ! •... .A cause of action based upon fraud accrues at the time the plaintiff "possesses knowledge ./' I' • of facts from which the fraud could have been discovered with reasonable diligence" (Clarke-Sf. " il . ' John v City o/New York, 164 AD3d 743, 744 [2d Dept 2018], quoting Town o/Poughkeepsie v Espie, 41 AD3d 701, 705 [2d Dept 2007]; see,Colemqn v Wells Fargo & Co., 125 AD3d 716, I "" , 716 [2d Dept 20 15]). Here,. plaintiff claims the City negligently issued and renewed permits in 2015 and 2017, and failed to find code violations prior to December 2017. However, plailltiff admits to discovering, inJuly 2015, that the flooding was occurring because of an illegally connected waste line and demanding, in August 2015, that defendants PB 2180 and Baldeo remedy the illegally connected line. General Municipal Law S 50-e (l) (a) requires service of a notice of claim within 90 days after the claim arises "[i]n any case founded upon !ort where a notice of claim is required by law as a co~dition precedent to the commencement of an action or special proceeding against a public corporation." Here, the facts upon which plaintiffs claim arose date back to acts of fraud 3 3 of 5 [*/" 4] I INDEX NO. 505104/2018 ", l NYSCEF ,,_ ~ DOC. NO. 94 RECEIVED NYSCEF: 11/27/2018 " / committed in between 2007 and 2012, and DOHMH's alleged negligence in issuing permits in 2015 'and renewing them in 2017. Even assuming, .as plaintiff alleges, the City was negligent in issuing permits for the daycare and failing to discover code violations prior to 2017, plaintiff s claim against the City was the same in July 2015, when it discovered the illegally connected sewer line. Th~refore, the Court finds plaintiffscause of action arose in July 2015. Moreover, despite ongoing leaks and flooding and plaintiff s allegedly unanswered demand to PB2180 and Baldeo to legally connect the waste line, plaintifftookno action t? address what it knew was an illegal condition for two years. Consequently, the 90-day notice period, pursuant to General MunicipflrLaw ~ 50-e [1] [a], has long passed. j- ••••• - • I ' "Upon application, the court, in its discretion, may extend the time to serve a notice of Claim ... [but] extension shall not ex~eed the time limited for the commencement of an action by the claimant against the public corporation" (General Municipal Law ~ 50-e [5]). Where, as here, .a claimant fai~s to apply for leave to serve a late notice of claim within one year and 90 days followiI}g the date that the claims accrued, the court is without authority to grant such relief (e.g. . , Sun v City o/New York, 131 AD3d 1015, 1016[2d Dept 2015]). Here, plaintiffs time to commence the action ran inoLabout October 2016, one year and 90 days from the time plaintiff learned of the illegal waste line connection while in possession of DOHMH permits to operate the daycare. A motion to renew, as here, "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]). 4 4 of 5 "'I" [* 5] INDEX NO. 505104/2018 ...•.. NYSCEF ~ DOC. NO. 94 RECEIVED NYSCEF: 11/27/2018 Here, plaintiff has failed to meet this burden. Accordingly, plaintiffs motion to renew its application f?r leave to file a late notice of claim is denied. E N T E R: 1\ f2~ ~,o HOI"'.!'4 ~ . R;.>::~~I\!L\l nA \_:.- ""'.. IZr-,..L~''''''' ~ .•• __ Hon. Reginald A. Boddie Justice, Supreme Court 5 5 of 5 ••• 'C-C " ••••• j •• RnnD.!r.: ~ fa... \0. •••. t.oo"

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