Downing v New York City Hous. Auth.

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[*1] Downing v New York City Hous. Auth. 2019 NY Slip Op 51197(U) Decided on July 25, 2019 Supreme Court, Kings County Boddie, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 25, 2019
Supreme Court, Kings County

Andrea Downing, individually, and in her Representative Capacity as Parent and Natural Guardian of P.W., Plaintiffs-Petitioners,


New York City Housing Authority, THE CITY OF NEW YORK, SHOLA OLATOYE, BILL DE BLASIO, JOHN AND JANE DOES, Defendants-Respondents.


Certain & Zilberg, PLLC

909 Third Avenue

28th Floor

New York, NY 10022

Attorneys for Plaintiffs

Corporation Counsel

New York City Law Department

Special Litigation Unit

100 Church Street

New York, NY 10007

Attorneys for the City of New York and Mayor Bill de Blasio

Hertzfeld & Rubin, P.C.

125 Broad Street

New York, NY 10004

Attorneys for NYCHA
Reginald A. Boddie, J.

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this motion:

Papers Numbered

Notice of Motion to Dismiss (NYC Housing Authority) 1-2

Affirmation in Opposition 3

Notice of Motion to File Late Notice of Claim 4

Affirmation in Opposition 5

Upon the foregoing cited papers, and after oral argument, the decision and order on the [*2]Housing Authority's Motion to Dismiss, pursuant to CPLR 3211 (a) (7) and General Municipal Law § 50-e, and petitioner's motion for leave to file a late notice of claim, pursuant to General Municipal Law § 50-e, is as follows:

In the instant proceedings, petitioners, mother and child, seek damages against the City of New York (City), the New York City Housing Authority (NYCHA), Mayor Bill de Blasio, and Shola Olatoye, former Executive Director of the New York City Housing Authority, for their alleged negligence, fraud and other unlawful conduct related to testing, repair, and abatement of lead paint in their residence.

The undisputed facts underlying this case are as follows: Petitioner Andrea Downing moved into 426 Columbia Street, Apartment 2B, in Brooklyn in or about August 2015. This apartment building is part of the Red Hook West Houses which is owned and managed by NYCHA. Ms. Downing gave birth to infant P.W. in January 2017, and the two resided together in the subject premises. On October 22, 2017, the New York City Department of Health (DOH) was notified by the infant's doctor that the infant had elevated toxic blood levels consistent with lead paint poisoning. The DOH immediately investigated, confirmed the contamination, and notified NYCHA by letter dated, November 22, 2017. NYCHA also conducted an inspection within the subject 90 day period. Petitioner served a notice of claim on NYCHA and the City defendants January 17, 2019, and commenced the instant action by summons and complaint on or about January 18, 2019.

NYCHA moved to dismiss the complaint alleging petitioners' failure to serve a timely notice of claim. Petitioners moved for leave to serve a late notice of claim or deem the notice of claim served on NYCHA and the City timely filed nunc pro tunc. The City and Mayor de Blasio cross-moved to dismiss the complaint in entirety. The City and Mayor de Blasio's cross-motion to dismiss the complaint is granted for reasons stated in a separate decision. Therefore, petitioners' motion for leave to serve a late notice of claim on the City and the Mayor is denied as moot. Only the notice of claim as to NYCHA and NYCHA's motion to dismiss on the grounds petitioners failed to file a timely notice of claim are discussed here.

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, including reasonable excuse for the delay, whether NYCHA acquired actual knowledge of the essential facts constituting the claims within 90 days after the claim arose or a reasonable time thereafter, whether NYCHA's defense would be substantially prejudiced by the delay and whether petitioners made an error concerning the identity of the public corporation (General Municipal Law § 50-e [5]; see Ramos v New York City Hous. Auth., 162 AD3d 884 [2d Dept 2018]).

Of the factors courts consider, the "most important, based on its placement in the statute and its relation to other relevant factors" (Matter of 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 the claim within 90 days of the accrual of the claim or a reasonable time thereafter (see General Municipal Law § 50-e[5]).

"The phrase 'facts constituting the claim' is understood to mean the facts which would demonstrate a connection between the happening of the accident and any negligence on the part of the municipal corporation" (Matter of Wright v City of New York, 66 AD3d 1037, 1038 [2d Dept 2009], citing see Saafir v Metro-North Commuter R.R. Co., 260 AD2d 462 [2d Dept 1999]). "The municipal corporation must have notice or knowledge of the specific claim and not merely some general knowledge that a wrong has been committed" (Matter of Wright, 66 AD3d at 1038, citing see Arias v New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 832 [2d Dept 2008]).

As an initial matter, previous courts have recognized this court may entertain the petitioners' application as a special proceeding although it may have been improperly brought as a motion (Ramos v New York City Hous. Auth., 162 AD3d 884 [2d Dept 2018]; Lewin v County of Suffolk, 239 AD3d 345 [2d Dept 1997]). Therefore, respondents' contention that this court may [*3]not hear the application lacks merit. Moreover, here, the petitioners' delay was not occasioned by the failure to identify NYCHA as the proper party for purposes of filing the notice of claim.

Nevertheless, NYCHA cannot and does not dispute that it was notified by the DOH on or about October 22, 2017, of P.W.'s elevated blood toxin levels due to lead paint in the apartment, and ordered by the DOH on November 22, 2017, to abate the condition. NYCHA also does not dispute that it too conducted an investigation of the condition in the apartment within the 90 day statutory notice of claim period. Therefore, on these facts, the court finds NYCHA had actual knowledge of the infant's claim and essential facts related thereto within the required 90 day period.

The infant also had reasonable excuse for failing to file a timely notice of claim since he is a minor unable to do so of his own free will, and his mother was consumed with school, pregnancy and other matters. NYCHA was unable to establish prejudice in light of having conducted its own investigation of the matter immediately upon learning of P.W.'s circumstances within the statutory 90 day notice of claim period (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 463 [2016]). Accordingly, the infant-plaintiff's notice of claim served on January 17, 2019, is deemed timely filed nunc pro tunc.

Turning to Ms. Downing, the complaint filed here contains a single claim for loss of services. Inasmuch as NYCHA had actual notice of the claim of the child, it cannot be said that NYCHA did not have notice of the sole claim of the mother for loss of services. Nor, does NYCHA contend it did not anticipate the claim of the mother for loss of services. NYCHA also is not prejudiced by the late claim of the mother since NYCHA already investigated and confirmed the condition of lead paint in the apartment, as well as P.W.'s health status related to such, within the statutory 90 day period.

Ms. Downing stated she was late filing due to the fact that P.W. is an infant, she was pregnant with another child, attending school and handling other matters of life sustenance. Though admirable, this does not constitute a recognized reasonable excuse. Unlike in Matter of Guzman v County of Westchester, 208 AD2d 925 (2d Dept 1994), Ms. Downing's delay was not a result of primarily focusing on the health of P.W. Ms. Dowing admits her time was occupied by taking five to six college classes per semester from October 2017 to October 2018. Nevertheless, an excuse is not required, and NYCHA is not prejudiced. Consistent with the intent of the statute, NYCHA had " 'an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information [was] still readily available' " (Palmer v Society for Seamen's Children, 88 AD3d 970, 971 [2nd Dept 2011], citing Teresta v City of New York, 304 NY 440, 443 [1952]).

For the reasons indicated above, petitioners' motion for leave to deem their notice of claim served on NYCHA timely nunc pro tunc is granted. Accordingly, NYCHA's motion to dismiss for petitioners' failure to file a timely notice of claim is denied.

E N T E R:

July 25, 2019


Hon. Reginald A. Boddie

Justice, Supreme Court