Opinion
No. CV–005828–09/RI.
2010-09-30
Chanel Robinson DEBOSE, Plaintiff, v. The CITY OF NEW YORK, Defendant.
Chanel Robinson Debose, Plaintiff Pro Se. Michael A. Cardozo, Corporation Counsel, New York City, Attorney for Defendant.
Chanel Robinson Debose, Plaintiff Pro Se. Michael A. Cardozo, Corporation Counsel, New York City, Attorney for Defendant.
KATHERINE A. LEVINE, J.
Plaintiff Chanel Robinson Debose (“plaintiff” or “Debose”) brings this action to recover $5,000 in damages for personal injuries she sustained while on the Staten Island Ferry (“ferry”). Defendant City of New York (“City”) moves to dismiss the complaint and for summary judgment based upon plaintiff's failure to serve defendant with a Notice of Claim within 90 days of the accident as required by General Municipal Law 50–E. Plaintiff opposes defendant's motion and cross moves for leave of court to file a late notice of claim.
On January 5, 2008, plaintiff, an attorney licensed in Louisiana, took the ferry during her trip to the New York City. While aboard the ferry, plaintiff's leg brushed against a protruding lock hinge of a chest positioned near the entry/exit door of the ferry. Plaintiff sustained a severe laceration to her leg that required treatment by the Staten Island Ferry Emergency Response Crew employed at the Dock (“crew”). Plaintiff gave the crew her personal information, including a copy of her driver's license, and the crew filled out an incident report. The crew advised her that she needed stitches and called an ambulance, which took plaintiff to the Richmond University Medical Center where she was treated and released later that night.
Plaintiff filed a Notice of Claim with defendant 11 months after the accident, and defendant disallowed the claim due to plaintiff's tardy filing of the Notice of Claim.
To commence a tort action against a municipality or public corporation, a claimant must serve a notice of claim within 90 days of the alleged injury. Morales v. New York City Transit Auth., 15 A.D.3d 580, 581, 790 N.Y.S.2d 212 (2d Dept.2005). See, General Municipal Law § 50–e [1][a].
The service of a notice of claim within 90 days after the claim arose is a condition precedent to a lawsuit against a municipality. Brown v. City of New York, 95 N.Y.2d 389, 718 N.Y.S.2d 4, 740 N.E.2d 1078 (2000); Mtr of Hicks v. City of New York, 8 A.D.3d 566, 778 N.Y.S.2d 725 (2004). The purpose of the notice of claim is to protect the municipality against unfounded or stale claims and to assure it an adequate opportunity to explore the merits of the claim while information is still readily available. Mtr. of Peterson v. NYC Dept. of Environmental Protection, 66 A.D.3d 1027, 887 N.Y.S.2d 269 (2d Dept.2009); LFL Gallery, Inc. v. City of New York, Dept. of Environmental Protection, 11 Misc.3d 519, 812 N.Y.S.2d 820 (Sup.Ct., New York Co.2006)citing Camacho v. City of New York, 187 A.D.2d 262, 263, 589 N.Y.S.2d 421 (1st Dept 1992).
Pursuant to General Municipal Law § 50–e (5), the court may, in its discretion, extend the time to serve a notice of claim. Mtr. of Hicks, supra at 566–67, 778 N.Y.S.2d 725. In determining whether to permit service of a late notice of claim, the court must consider a number of factors, including whether (1) the movant demonstrated a reasonable excuse for his failure to serve a timely notice of claim, (2) the municipality or public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (3) the delay would substantially prejudice the municipality or public corporation in defending on the merits. Martinez v. City of New York, 63 A.D.3d 696–97, 879 N.Y.S.2d 589 (2d Dept.2009); Mtr of Hicks v. City of New York, supra, Williams v. Nassau County Med. Ctr., 13 A.D.3d 363, 364, 786 N.Y.S.2d 207 (2d Dept.2004); Mtr. Of Flores v. County of Nassau, 8 A.D.3d 377, 777 N.Y.S.2d 739 (2d Dept.2004); Mtr. Of Fierro v. City of New York, 271 A.D.2d 608, 609, 706 N.Y.S.2d 451,(2d Dept.2000).
In Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 851 N.Y.S.2d 218 (2nd Dept.2008), the court extensively discussed the parameters in which it could entertain late notices of claim. The court found that the most important factor to consider in deciding whether to accept a late of notice of claim was whether the municipal entity received actual knowledge of the facts constituting the claim in a timely manner. Id. at 147, 851 N.Y.S.2d 218.See, Casias v. City of New York, 39 A.D.3d 681, 833 N.Y.S.2d 662 (2nd Dept.2007); Mtr of Battle v. City of New York, 261 A.D.2d 614, 615, 690 N.Y.S.2d 698, (2d Dept.1999). The court stated that:
“(w)e have consistently held that a public corporation's knowledge of the accident and the injury, without more, does not constitute actual knowledge of the essential facts constituting the claim” (General Municipal Law § 50–e [5]; see Weber v. County of Suffolk, 208 A.D.2d 527, 528, 616 N.Y.S.2d 807), at least where the incident and the injury do not necessarily occur only as the result of fault for which it may be liable. In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves.
Id. at 147–48, 690 N.Y.S.2d 698. The court found its construction was consistent with General Municipal Law § 50–e(2)'s mandate that a notice of claim contain not only “the time when, the place where and the manner in which the claim arose,” but also “the nature of the claim.” General Municipal Law § 50–e(2). 50 A.D.3d at 148, 851 N.Y.S.2d 218.
The Felice court then distinguished situations where the municipality had knowledge of the accident, as compared to knowledge of the essential facts constituting the claim. Thus, a school district was deemed not to be apprised of a claim that a student had violent proclivities when the district was only made aware of a student's injury due to another student's colliding into her. Mtr. Of Scolo v. Central Islip U.F.S.D, 40 A.D.3d 1104, 838 N.Y.S.2d 577 (2d Dept. 200 7). Nor did a district's knowledge of a football player's injury due to the player being hit by another player apprise the school district of the claim that school personnel had negligently supervised the student. Ryder v. Garden City School. Dist., 277 A.D.2d 388, 716 N.Y.S.2d 97 (2d Dept.2000).
In contrast, public corporations were deemed to have actual knowledge of the essential facts constituting the claim where, for example, the principle of a school was aware not only of the accident and injury in the playground but of fact that shortly before accident, a playground monitor had cautioned the children on a slide to wait an interval before sliding down to avoid a collision ( Mtr. Of Apgar v. Waverly Cent. Sch. Dist., 36 A.D.3d 1113, 1114, 828 N.Y.S.2d 652 (3rd Dept.2007); or where records contained an allegation by plaintiff that she was hurt when an ambulance in which she was a passenger braked and a wheelchair slid forward (Gibbs v. City of NY, 22 A.D.3d 717, 804 N.Y.S.2d 393 (2d Dept.2005); or where the Sanitation Department had records revealing that it knew that the claimant had been exposed to asbestos. Mtr. of Edwards v. City of NY., 2 A.D.3d 110, 767 N.Y.S.2d 608 (1st Dept.2003).
In Felice, the court noted that the injury report filled out by the team coach failed to set forth the basis or facts of the claim-that the student “basers” were either too small to catch a flyer, such as plaintiff Felice, or that Felice had made known her to her coach her dissatisfaction with the team members assigned as basers. Therefore, the school district did not have actual notice of the essential facts constituting a claim and the court did not accept the late notice of claim. 50 A.D.3d at 150, 851 N.Y.S.2d 218.See also, Wesolowski v. Town of Oyster Bay, 2010 N.Y. Slip Op 32354U, 2010 N.Y. Misc. LEXIS 4192, 2010 WL 3462161 (Sup Ct., Nassau Co.2010)(petitioner's late notice of claim was “utterly devoid of any facts underlying the legal theories of negligence and labor law violations” where petitioner merely described that the accident occurred at one of the equipment buildings but did not specify the precise location where the accident occurred, or how it occurred, or what he was doing at the time.
Here, plaintiff asserts that the City had “actual knowledge” of her claim within 90 days of the accident since she filled out an incident report given to her by the emergency response crew (“crew”) who treated her when she was injured. She claimed that employees at the dock took down her personal information and led her to believe that she would be contacted about the incident. This, without more, falls far short of apprising the City about the essential facts supporting her claim or underlying legal theory of her case. No where does plaintiff mention that she informed the crew of how she sustained the injury, or of the protruding lock hinge of a chest positioned near the entry/exit door of the ferry, or of the ferry's failure to position the hinge so that individuals would not inadvertently run into it.
Similarly, plaintiff's claim that she was not aware of the notice of claim requirement is not an acceptable excuse for the failure to timely file a notice of claim. Felice, supra, 50 A.D.3d at 150, 851 N.Y.S.2d 218;Mtr. Of Pico v. City of NY, 8 A.D.3d 287, 288, 777 N.Y.S.2d 697 (2d Dept.2004). Plaintiff appears to argue that as a practicing attorney, she had a more reasonable excuse for her lack of knowledge about the notice of claim requirement because such prerequisite of instituting a claim against the city “is not applicable in every State.” However, as an attorney, she should be more, rather than less scrupulous in ascertaining the prerequisites of filing suit.
Finally, contrary to plaintiff's argument, the City did not waive its right to bring a motion to dismiss for failure to file a notice of claim because it did not mention such argument as an affirmative defense in its answer. The City in under no obligation to apprise plaintiff that she had failed to file a timely notice of claim against it. Davis v. City of NY, 250 A.D.2d 368, 370, 673 N.Y.S.2d 79 (1st Dept.1998). Furthermore, the failure to serve a timely notice of claim may be raised at any time prior to trial. Wade v. NYC Health and Hospitals Corp., 16 A.D.3d 677, 793 N.Y.S.2d 68 (2d Dept.2005); Frank v. City of NY 240 A.D.2d 198, 658 N.Y.S.2d 293 (1st Dept.1997); Kroin v. City of New York, 210 A.D.2d 95, 620 N.Y.S.2d 339 (1st Dept.1994).
In light of the above, defendant's motion is granted and the case is dismissed.
The foregoing constitutes the decision and order of this court.