Abi-Saab v City of New York

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Abi-Saab v City of New York 2020 NY Slip Op 33189(U) September 29, 2020 Supreme Court, New York County Docket Number: 151554/2020 Judge: Lyle E. Frank 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. 151554/2020 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 09/29/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. LYLE E. FRANK IAS. MOTION 52EFM Justice ---------------------------------------------------------------------------------X RAMZY ABl-SAAB, INDEX NO. MOTION DATE Petitioner, MOTION SEQ. NO. 151554/2020 N/A - --001 - -- -vTHE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT AMENDED DECISION + ORDER ON MOTION Respondent. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion to/for ORDER/JUDGMENT NUNC PRO TUNC Petitioner moves this court pursuant to General Municipal Law (GML) § 50-(e) seeking leave to file a late notice of claim for injuries allegedly sustained as a result of being struck by a motor vehicle on November 15, 2018. Respondents oppose the instant petition. Legal Standard It is well settled law that granting a petition to file a late notice of claim is discretionary. GML § 50-e (5), which pertains specifically to an application to file a late notice of claim, states in pertinent part that, "Upon application, the court, in its discretion, may extend the time to serve a notice of claim ... [and] 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 period specified ... or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including, ... whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits." The burden rests on petitioner to establish lack of prejudice. If petitioner Page 1of4 151554/2020 ABl-SAAB, RAMZV vs. CITY OF NEW YORK Motion No. 001 1 of 4 [* 2] INDEX NO. 151554/2020 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 09/29/2020 satisfies its burden, the burden then shifts to the respondent to show that they are substantially prejudiced by the late service. (Matter o.fNewcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 466 [2016]) Additionally, it is well settled that courts consider "whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame." (see GML § 50-e [5]). The presence or absence of any one factor is not determinative. (Velazquez v City ofNY Health and Hasps. Corp. [Jacobi Med. Ctr.}, 69 AD3d 441, 442 [1st Dept 2010], quoting Dubawy v City o.fNew York, 305 AD2d 320, 321 [I st Dept 2003].) Specifically, the failure to assert a reasonable excuse, alone, is not fatal to the application. Velazquez v City ofN Y Health and Hasps. Corp. [Jacobi Med. Ctr.], citing (Ansong v City o.f NY, 308 AD2d 333 [1st Dept 2003].) In the context of GML § 50-e, "actual knowledge" means that the respondent acquired knowledge of the essential facts forming the basis of the claim, not simply knowledge of the occurrence of an accident. Kim v City o.f New York~ 256 AD2d 83 [1st Dept 1998], app. Denied, 93 NY29 896 [1999]. Petitioner has the burden of establishing this element. Washington v City o.l New York, 72 NY2d 881 [1988]. The petition is silent as to the reason for the delay; while this alone is not fatal, petitioner does not satisfy its burden with respect to the other factors. The petition does not establish that respondents had actual knowledge of the claim within 90 days or a reasonable time thereafter. The petition attempts to impute respondents with actual knowledge of the incident, based on the law enforcement response and subsequent prosecution; however, this is insufficient to establish that respondents had actual knowledge of petitioner's claim. As noted below, plaintiffs only potentially cognizable claim is that of exacerbation of the injuries by the action and/or inaction 151554/2020 ABl-SAAB, RAMZV vs. CITY OF NEW YORK Motion No. 001 Page 2 of4 2 of 4 [* 3] INDEX NO. 151554/2020 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 09/29/2020 of the police officers involved. That the respondent knew of this crash does not provide notice of a claim of exacerbation of injury. The respondent would only have learned about this theory through filing of this application, which occurred nearly one year after the conclusion of the applicable ninety-day period. Moreover, petitioner does not establish that respondents will not be prejudiced by the delay. Petitioner's conclusory allegation that respondents cannot establish that prejudice exists, is inaccurate application of the standard and improper burden shifting. Accordingly, petitioner has not met its burden with respect to any of standards delineated in GML§ 50-e. Moreover, the Court agrees with respondents that there is no cognizable cause of action against respondents. There is no cause of action for negligent investigation, nor may the City of New York (the "City") be held liable here for the actions that allegedly occurred where the City employee was off duty. In reply, petitioner argues that it is not the actions of the off-duty officer for which it seeks to hold respondents liable, rather it is the City's failure to investigate and promptly provide petitioner medical care. However, the underlying petition contradicts that contention and asserts that the basis of the claim is within the criminal complaint of the off-duty officer. Moreover, as stated above, petitioner has failed to demonstrate that respondents have actual knowledge of the facts underlying the petitioner's claim as petitioner is silent as to this factor, rather petitioner relies on the police accident report to impute knowledge of the occurrence. Additionally, as the City points out in its sur reply, petitioner's proposed notice of claim is silent as to the new theory raised in its reply papers. Petitioner also fails to demonstrate a lack of prejudice and to demonstrate a reasonable excuse for this petition being filed nearly one year after the applicable ninety-day period has run. Accordingly, it is hereby 151554/2020 A Bl-SAAB, RAMZV vs. CITY OF NEW YORK Motion No. 001 Page 3 of4 3 of 4 [* 4] INDEX NO. 151554/2020 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 09/29/2020 ADJUDGED, that the petition to serve a late notice of claim is DENIED. 9/29/2020 DATE CHECK ONE: LYLE CASE DISPOSED GRANTED 0 DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 151554/2020 ABl-SAAB, RAMZV vs. CITY OF NEW YORK Motion No. 001 ~ ·tL NK, NON-FINAL 01s+iGN. GRANTED IN PART SUBMIT ORDER . FIDUCIARY APPOINTMENT J.S.C. LYLE E. FRANK D D OTHER REFERENCE Page 4 of 4 4 of 4 J.S.C.

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