Brown v New York City Hous. Auth.

[*1] Brown v New York City Hous. Auth. 2018 NY Slip Op 50669(U) Decided on May 10, 2018 Supreme Court, Kings County Borrok, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 10, 2018
Supreme Court, Kings County

Helen Brown, Petitioner,

against

New York City Housing Authority, Respondent.



501198/18



Attorney for Petitioner: John P. Zervopoulos, Esq. as counsel of Salenger, Sack, Kimmel & Bavaro 180 Froehlich Farm Boulevard Woodbury, New York 11797 516-677-0100.

Attorney for Respondent: Patrick J. Lawless, Esq. as counsel of Wilson, Elser Mowskowitz Edeman & Dickler, LLP 150 East 42nd Street New York, New York 10017 212-490-3000.
Andrew Borrok, J.

Recitation, as required by CPLR 2219(a), of the papers considered on the review of this order to show cause for leave to file a late notice of claim:

PAPERS NUMBERED

Order to Show Cause and Petition and Affidavits Annexed 1

Answering Affidavits 2

Replying Affidavits 3

Sur-Reply Affidavits

Upon the foregoing cited papers, the Decision/Order on this Order to Show Cause is as follows:

Section 50(e) of the General Municipal Law requires that notice of claim be filed within 90-days after a claim founded upon tort arises.[FN1]

The issue presented by this motion is, in considering all of the relevant circumstances, including whether (1) the defendant acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, (2) there is reasonable excuse for the delay, and (3) whether the defendant is substantially prejudiced by the delay in its ability to maintain its defense on the merits, this Court should exercise its discretion to grant leave to Petitioner to file a late Notice Of Claim. See In the Matter of Liana Viola et al. v. Ronkonoma Middle School, et al., and Connectquot Central School District, 107 AD3d 1009, 968 N.Y.S.2d 876 (Mem), 2013 NY Slip Op. 04819 citing see Education Law § 3813[2—a]; General Municipal Law § 50—e[5]; Williams v. Nassau County Med. Ctr., 6 NY3d 531, 538, 814 N.Y.S.2d 580, 847 N.E.2d 1154; Matter of *1010 Diggs v. Board of Educ. of City of Yonkers, 79 AD3d 869, 869—870, 912 N.Y.S.2d 688; Matter of Avalos v. City of NY Bd. of Educ., 67 AD3d 675, 886 N.Y.S.2d 910; Matter of Formisano v. Eastchester Union Free School Dist., 59 AD3d 543, 544, 873 N.Y.S.2d 162).

In Ruffino v. City of New York, 57 AD3d 550, 868 N.Y.S.2d 739, 2008 NY Slip Op. [*2]09605, Victoria Ruffino fell and was injured on a boardwalk owned by the City of New York (the City). Ms. Ruffino timely served a Notice of Claim upon the New York City Transit Authority (the Transit Authority) but not upon the City. Within one month of Ms. Ruffino's injury and prior to the expiration of the 90-day period, (i.e., approximately 60 days prior to the expiration of the 90 day period in which Ms. Ruffino could serve a Notice of Claim), the City repaired the allegedly dangerous and defective condition. Ms. Ruffino had, however, taken photographs of the alleged defect on the day of her accident. The Transit Authority brought a third-party action against the City and Ms. Ruffino filed a motion for leave to serve a late Notice of Claim on the City. In granting that motion, the Second Department held that notwithstanding Ms. Ruffino's error in serving the wrong governmental entity, inasmuch as the mistake was promptly remedied after the mistake was discovered, there was no prejudice to the City because the condition had been repaired prior to the expiration of the 90-day period. Specifically, the Ruffino court held that

[D]ue to its own actions, it would not have been able to investigate the site of this transitory defect any more effectively than it could have had it been timely served 90 days after the incident. Ruffino citing Segreto v. Town of Oyster Bay, 66 AD2d 796, 410 N.Y.S.2d 898; cf. Matter of Felice v. Eastport/South Manor Cent. School *552 Dist., 50 AD3d 138, 152, 851 N.Y.S.2d 218; Matter of Nieves v. Girimonte, 309 AD2d 753, 765 N.Y.S.2d 64).

Subsequently, in The Matter of Raymond Newcomb et. al., v. Middle Country Central School District, 28 NY3d 455 (2016), the Court of Appeals commented that a finding that a public corporation is substantially prejudiced by a late notice of claim must be based on substantial evidence in the record.[FN2]

In the case before the Court, on August 23, 2017, Helen Brown (the Petitioner) allegedly fell on a staircase located in a New York City Housing Authority (NYCHA) building. On October 6, 2017, approximately 44 days after the injury (i.e., and approximately 46 days prior to the expiration of the 90-day time period for filing a Notice of Claim), the Petitioner timely served a Notice of Claim on the City, NYCHA, the New York City Department of Design and Construction (the DDC) and the New York City Department of Buildings (the DOB). The City was served both at 100 Church Street and 1 Centre Street, New York, NY, while NYCHA, the DDC and the DOB were all served, or attempted to be served, at 1 Centre Street, New York, NY. However, the correct address for service on NYCHA is 250 Broadway, New York, NY.

On October 23, 2017, 61 days after the Petitioner was allegedly injured and some approximately 29 days before the expiration of the 90-day time period during which Petitioner could have filed her Notice of Claim, NYCHA fixed the allegedly dangerous and defective condition on the stairs where Petitioner allegedly fell.

When the Petitioner discovered that she had caused NYCHA to be served with her Notice of Claim at the wrong address, on January 9, 2018 — i.e., approximately 49 days after the [*3]expiration of the 90 day period, she promptly re-served the Notice of Claim on NYCHA at its proper address for service, 250 Broadway, New York, New York, and annexed photographs showing the allegedly defective condition as it existed prior to the repairs performed by NYCHA.

Simply put, in this case, Petitioner has met the evidentiary burden of showing that NYCHA suffers no prejudice as a result of a late filing of the Notice of Claim and NYCHA has failed to meet its evidentiary burden to go forward to make a particularized evidentiary showing that the public corporation will be substantially prejudiced if the late Notice of Claim is allowed. Here, as in Ruffino, inasmuch as the allegedly dangerous and defective condition was remedied prior to the expiration of the 90 day period, had Petitioner served its Notice of Claim within the 90 day period (as was her right), NYCHA, due to the NYCHA's own actions, would not have been able to investigate the site of this allegedly transitory defect any more effectively than had it been timely served within the 90 days following the alleged incident. Moreover, here, as in Ruffino and The Matter of Raymond Newcomb, the Petitioner had taken photographs showing the allegedly defective condition as it existed prior to the repairs.

Accordingly, Petitioner's Order to Show Cause is granted and leave is granted to file the Notice of Claim within 30-days of this order.

Dated: May 10, 2018
HON. Andrew Borrok Footnotes

Footnote 1: Gen. Mun. Law §50(e).

Footnote 2: Previously there had been a split in the Appellate Departments authority regarding which party has the burden of proof to demonstrate when a late notice of claim substituting prejudices the public corporation. The Matter of Raymond Newcomb makes clear that the first instance evidentiary burden initially rests on the Petitioner to show that late notice does not substantially prejudice the corporation, and then the public corporation must go forward with a particularized evidentiary showing that the public corporation will be substantially prejudiced if the late notice is permitted. The Matter of Raymond Newcomb et. al., v. Middle Country Central School District, 28 NY3d 455 (2016).