Matter of Etienne v City of New York

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Matter of Etienne v City of New York 2019 NY Slip Op 30654(U) February 13, 2019 Supreme Court, Kings County Docket Number: 525286/2018 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. [*FILED: 1] KINGS COUNTY CLERK 03/13/2019 11:03 AM NYSCEF DOC. NO. 19 INDEX NO. 525286/2018 RECEIVED NYSCEF: 03/13/2019 At LA.S. Part 7 of the Supreme Court of the State of New v·ork, held in and for the County ofKings, at the Courthouse, located at 360 Adams Street, Borough of Brooklyn, City and State ofNe\v York. on the 13th day of February 2019. PRESENT: Honorable Reginald A. Boddie Justice, Supreme Court -------------------------------------------------------------------x In the Matter of the Application of JEAN MARIE ETIENNE and YOLANDA ANDREPOTEAU. Index No. 525286/2018 Cal. No. 15 Petitioners, -against- DECISION AND ORDER THE CITY OF NEW YORK, Respo_ndent. ------------------------------------------------------------------x Recitation, as required by CPLR § 2219 (a), oftl1e papers considered in the revie\V oftl1is n1otion: Papers Order to Show Cause & Annexed Affinnation/ Affidavits Afilrmation in Opposition Reply Numbered 1-2 3 4 Upon the foregoing cited papers, and after oral argument, the decision and order on petitioners' order to show cause. pursuant to General Municipal La\v § 50-e (5 L is as fOllo\vs: Petitioners \Vere in\ olved in a motor vehicle accident with a ·vehicle owned and operated 1 by t11e City of New York on November 27, 2017. Petitioners filed the instant petition seeking leave to file a late notice of claim on December 21, 2018, 300 days after the expiration of the 90day period. The City opposes. Whether petitioners will be granted leave to file a late notice of claim is left to the discretion of the court in consideration of all relevant factors iI1cluding wl1ether there is a 1 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 03/13/2019 11:03 AM NYSCEF DOC. NO. 19 INDEX NO. 525286/2018 RECEIVED NYSCEF: 03/13/2019 reasonable excuse for the delay, whether the City acquired actual kno\vledge of the essential facts constituting petitioners' clain1s witl1in 90 days after the claim arose or a reasonable time thereafter, and whether the City's defense would be substantially prejudiced by the delay (General Municipal Law§ 50-e [SJ). Of the factors courts consider, the "most important, based on its placement in the statute and its relation to other relevant factors" (Matter Qf Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147 [2d Dept 2008]), is whether the public corporation acquired actual knowledge of the essential facts constituting t11e-claim within 90 days of the -accrual of the claim or a reasonable time thereafter (see General Municipal La\v § 50-e(S]). ''The phrase 'facts constituting tl1e claim' is understood to mea11 the facts \Vhich would demonstrate a connection between the happening of the accident and any neglige11ce on the part of the municipal corporation" (Matter of Wright v City q[New York, 66 AD3d 1037, 1038 (2d Dept 2009], citing see ~')aqfir v A1etro-North Com111uter R.R. Co., 260 AD2d 462 [2d Dept 1999]). ''The municipal corporation must have notice or knowledge of the specific claim and not inerely some general knowledge that a wrong has been committed" (Matter Qffflright at 1038, citing see Arias v Ne1v }'ark City Health & Hos]JS. Corp. [Kings Co11nty Hosp. Ctr.], 50 AD3d 830, 832 [2d Dept 2008]; Pappalardo v City ofNew York, 2 AD3d 699 [2d Dept 2003]). Here, petitioners failed to establish the City had actual notice of their claims \Vithin 90 days. Petitioners argued the police report ge11erated at the scene of the accident and the fact that an FDNY \'ehicle was in\'olved ga\'e the City actual notice of their claims. lfowever, the fact that petitioners v,1ere injured as a result of the accident is absent-from the police report and petitioner failed to attach any FDNY investigative reports containing such inforination, although petitioners 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 03/13/2019 11:03 AM NYSCEF DOC. NO. 19 INDEX NO. 525286/2018 RECEIVED NYSCEF: 03/13/2019 alleged they exist (cf." Cruz v City ~fNew York, 149 AD3d 380, 381 [2d Dept 2017] [concluding the City acquired actual knowledge of the essential facts constituting the claim within 90 days of 1he accident, since its e1np1oyees \Vere directl_y involved in the accide11t, and the police accident report gave reasonable notice from which it could be inferred that a potentially actionable wrong had been committed by the City and that the petitio11er was injured as a result thereof]). Petitioners further argued that the extent of their injuries \Vas not apparent within'90 days, althougl1 they also averred their injuries were apparent at the scene of accident and required emergency medical attention. Excuses for failing to timely serve a notice of claim based on the injuries, medical condition, or incapacity of plaintiff require more than conclusory allegations by petitioner ot petitioner's counsel (~tr., (~"lee Matter of Papayannakos v Levittou1n Me1n .•~pecial Educ. 38 AD3d 902 [2d Dept 2007], citing see Matter o.fAliberti v (~ity u_f}'onkers, 302 AD2d 456 [2003]; Robertson v New York City Haus. Auth., 237 AD2d 501 [1997]; Matter of Caruso v County of Westchester, 220 AD2d 746 [1995]). Here, no medical documentation was attached to establish a nexus between petitioners' alleged medical condition and the delay. Further, petitioners unconvinciI1gly argued a 10-day delay in the filing of the police report contributed to the delay 111 filing. Although the lack of a reasonable excuse is not necessarily fatal to the granting of leave to serve a late notice of claim, where, as here. there is also a lack of actual notice, it is an improvident exercise of the Court's discretion to grant the petition (62A NY Jur 2d, Government Tort Liability§ 440, citing Hunt v City ofNew Rochelle, 223 AD2d 643 [2d Dept 1996]; Matter of Martin, 100 AD2d 879 [2d Dept 1984]). Finally, "a finding that a public corporation is substantially prejudiced b)' a late notice of claim cannot be based solely on speculation and inference; rather, a determination of substantial 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 03/13/2019 11:03 AM INDEX NO. 525286/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/13/2019 prejudice must be based on evidence in the record'. (Matter of Newcomb v J\1iddle Count1y Cent. Sch. Dist., 28 NY3d 455, 465-466 [2016]). Here, petitioners have failed to meet their initial burden of showing, by some evidence or plausible argument, the City wi ll not be substantially prejudiced by the de lay (see Matter ofNewcomb , 28 NY3d at 466). Petitioners averred that the City investigated the accident at the scene and used the time between the date of the accident and the filing of the police report to coordinate a defense. Petitioners' arguments here are unsupported by evidence in the record. " Indeed, there may be scenarios where, despite a finding that the public corporation lacked actual knowledge during the statutory period or a reasonable time thereafter, the public corporation nonetheless is not substantially prejudiced by the late notice" (Newcomb , 28 NY3d at 467, citing see e.g. Matter of Hubbard v County ofMadison , 71 AD3d 13 13, 13 I 5- I 316 [3d Dept 20 IO]). However, petitioners have failed to demonstrate that this is such a case. Accordingly, the order to show cause is denied. ENTE R: N ~ Hon. Reginald A. Boddie Justice, Supreme Court "~-~ <oo'\>"' ~\...Q ~· r~c..Cr ~<t:,,V o~· ~ 4 4 of 4 ~~·

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