Opinion
2018–01200 Index No.515882/17
07-24-2019
In the Matter of Bernice BROWN, et al., Appellants, v. CITY OF NEW YORK, et al., Respondents.
Beldock Levine & Hoffman LLP, New York, N.Y. (Keith Szczepanski and Gillian Cassell–Stiga of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing, Emma Grunberg, Sean R. Campbell, and Ashley Garman of counsel), for respondents.
Beldock Levine & Hoffman LLP, New York, N.Y. (Keith Szczepanski and Gillian Cassell–Stiga of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing, Emma Grunberg, Sean R. Campbell, and Ashley Garman of counsel), for respondents.
WILLIAM F. MASTRO, J.P., HECTOR D. LASALLE, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
On August 15, 2017, the petitioners, Bernice Brown, Henry Brown, Nuria Bryant, Raymond Dorcela, and Sonya Moyer, commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve late notices of claim upon the respondents. The petitioners alleged that they suffered emotional injuries and property damage as a result of certain practice drills conducted between April and June 2016 by unspecified firefighters employed by the respondent Fire Department of the City of New York (hereinafter the FDNY) in the apartment building where the petitioners resided. In support of their petition, the petitioners submitted a proposed notice of claim by Henry Brown and a separate proposed notice of claim by Moyer. The respondents served an affirmation in opposition dated September 8, 2017. For the first time in reply, the petitioners submitted affidavits from Henry Brown, Bryant, and Moyer, and an "event information" report dated May 17, 2016, created by the New York City Police Department (hereinafter the NYPD). The Supreme Court denied the petition, and the petitioners appeal.
General Municipal Law § 50–e provides that, prior to commencing an action sounding in tort against a municipality or public corporation, a notice of claim must be served within 90 days after the claim arises (see General Municipal Law § 50–e[1][a] ; Matter of Zaid v. City of New York, 87 A.D.3d 661, 662, 928 N.Y.S.2d 579 ).
We agree with the denial of those branches of the petition which were to grant Bernice Brown, Bryant, and Dorcela leave to serve late notices of claim, since these petitioners failed to submit a copy of their proposed notices of claim (see General Municipal Law § 50–e[7] ; Bethune v. Nassau Univ. Med. Ctr. [NUMC], 149 A.D.3d 798, 799, 49 N.Y.S.3d 909 ; Matter of Farfan v. City of New York, 101 A.D.3d 714, 715, 955 N.Y.S.2d 365 ; Matter of Estate of Curreri v. New York City Hous. Auth., 87 A.D.3d 1064, 1065, 929 N.Y.S.2d 759 ).
We also agree with the denial of that branch of the petition which was to grant Moyer leave to serve a late notice of claim, since her proposed notice of claim did not provide the time when, the place where, and the manner in which her claim arose, the items of damages or injuries, or the total amount claimed (see General Municipal Law § 50–e[2] ; Matter of Parker v. New York City Hous. Auth., 81 A.D.3d 964, 965, 916 N.Y.S.2d 841 ; Matter of Melissa G. v. North Babylon Union Free School Dist., 50 A.D.3d 901, 902, 855 N.Y.S.2d 276 ; Perre v. Town of Poughkeepsie, 300 A.D.2d 379, 380, 752 N.Y.S.2d 68 ).
We further agree with the denial of that branch of the petition which was to grant Henry Brown leave to serve a late notice of claim. Henry Brown failed to proffer any excuse for his failure to serve a timely notice of claim (see Matter of Wilson v. City of New York, 160 A.D.3d 970, 971, 75 N.Y.S.3d 84 ; Matter of D'Agostino v. City of New York, 146 A.D.3d 880, 882, 46 N.Y.S.3d 635 ; Troy v. Town of Hyde Park, 63 A.D.3d 913, 914, 882 N.Y.S.2d 159 ). His contention that the respondents had actual knowledge of his claim based on the allegation in the petition that the FDNY's employees were directly involved in the incidents, without more—such as a report or other evidence demonstrating that the respondents acquired timely, actual knowledge of the essential facts constituting his claim—is without merit (see Matter of Naar v. City of New York, 161 A.D.3d 1081, 1083, 77 N.Y.S.3d 706 ; Matter of Thill v. North Shore Cent. Sch. Dist., 128 A.D.3d 976, 977, 10 N.Y.S.3d 144 ; Matter of Thompson v. City of New York, 95 A.D.3d 1024, 1025, 943 N.Y.S.2d 769 ). Finally, he failed to present "some evidence or plausible argument" supporting a finding that the respondents will not be substantially prejudiced by the more than one-year delay from the expiration of the 90–day statutory period until the commencement of this proceeding ( Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; see Matter of Fethallah v. New York City Police Dept., 150 A.D.3d 998, 1001, 55 N.Y.S.3d 325 ; Matter of Ramos v. Board of Educ. of the City of N.Y., 148 A.D.3d 909, 912, 49 N.Y.S.3d 539 ).
We have not considered the affidavits or the NYPD report submitted by the petitioners for the first time in their reply (see Matter of Murnane v. New York City Sch. Constr. Auth., 164 A.D.3d 506, 508, 83 N.Y.S.3d 105 ; Matter of Bell v. City of New York, 100 A.D.3d 990, 991, 954 N.Y.S.2d 229 ; Matter of Wright v. City of New York, 99 A.D.3d 717, 719, 951 N.Y.S.2d 750 ), or the excuses for the failures asserted by the petitioners for the first time on appeal (see Matter of 148 S. Emerson Partners, LLC v. 148 S. Emerson Assoc., LLC, 157 A.D.3d 887, 889, 70 N.Y.S.3d 213 ; Daly v. Kochanowicz, 67 A.D.3d 78, 92, 884 N.Y.S.2d 144 ).
MASTRO, J.P., LASALLE, BARROS and CONNOLLY, JJ., concur.