E.L. v. The City of New York

Full title: E.L., an infant, by his mother and natural guardian, Sandra Rodriguez, and…

Court: Supreme Court, Queens County

Date published: Apr 21, 2023

2023 N.Y. Slip Op. 50357 (N.Y. Sup. Ct. 2023)

Opinion

Index No. 705518/2023

04-21-2023

E.L., an infant, by his mother and natural guardian, Sandra Rodriguez, and Sandra Rodriguez, individually, Petitioners, v. The City of New York, and New York City Department of Education, M.S. 358, Principal of M.S. 358 - Brandon T. Mims, Respondents.

For Petitioner: Roman Mikhail Avshalumov of Helen Dalton & Associate, PC For Respondents: Anita Sukhu, of NYC Law Department

Hon. Tracy Catapano-Fox, J.S.C.

Unpublished Opinion

For Petitioner: Roman Mikhail Avshalumov of Helen Dalton & Associate, PC

For Respondents: Anita Sukhu, of NYC Law Department

Hon. Tracy Catapano-Fox, J.S.C.

The following papers numbered 1 to 9 read on this application by petitioners for leave to file a late Notice of Claim pursuant to General Municipal Law §50-e(5).

Papers Numbered

Notice of Petition, Petition, Order to Show Cause, Affirmation, Exhibits 1-6

Affirmation in Opposition, Exhibits 7-9

Upon the foregoing papers, it is ordered that this Petition is determined as follows:

Petitioners' application for leave to file a late Notice of Claim pursuant to General Municipal Law §50-e(5) is granted, as petitioners demonstrated a reasonable excuse for the delay, that respondents had actual knowledge of the essential facts constituting the claim, and that there is no substantial prejudice to respondents. (See Matter of Blanco v. City of New York, 78 A.D.3d 1048 [2d Dept. 2010].) Petitioners' claims arose on October 17, 2022, during a time when infant petitioner was bullied by another student at respondents' school located at 88-08 164th Street in Jamaica, Queens. Petitioner filed this application on March 15, 2023, seeking leave to file a late Notice of Claim, to which respondents filed opposition.

The petition argues respondents are liable for infant's injuries while a student at M.S. 358. From the period between September 7, 2022 and October 17, 2022, infant petitioner allegedly suffered through verbal and physical abuse at the hands of another student and began to change his behavior. The petition indicated that infant petitioner did not want to eat, bathe, speak to anyone, and began to urinate the bed at night. Infant petitioner's mother, petitioner Sandra Rodriguez, took him to the doctor and was told he was physically fine. However, on October 17, 2022, a student cut infant petitioner's hand and left multiple visible lacerations. Soon thereafter infant petitioner was admitted to a psychiatric ward where he indicated that he had been bullied and was very fearful of that student. When infant petitioner returned to school, the principal held a meeting with him, the boy that cut his hand, a parent coordinator, a social worker, and translator wherein infant petitioner was allegedly coerced into signing a statement indicating that he consensually permitted the boy to cut his hand. Infant petitioner's mother was allegedly not notified of the meeting, and infant petitioner subsequently transferred schools because of the bullying.

Petitioners argue that they should be given leave to file a late Notice of Claim because respondents had actual knowledge of the essential facts constituting the claim within ninety days after the claim arose, petitioners had a reasonable excuse for the delay, and there is no prejudice to respondents. Petitioners presented an affidavit of merit from infant petitioner's mother, Sandra Rodriguez, a proposed Notice of Claim verified by petitioner Sandra Rodriguez, hospital documents, school reports, photographs, and an enrollment letter. Petitioners argue that respondents had actual knowledge of the essential facts because respondents' Occurrence Report indicated that another student in infant petitioner's class scraped cuts into his hand with a pencil tip several times and slapped his hand, and that the school was aware of and continued to investigate the incident. Petitioners further argue the delay in filing the Notice of Claim was reasonable because the family was addressing infant petitioner's severe physical and emotional distress as a result of the bullying attacks, which included him spending three days in a psychiatric ward and months of doctors' visits. Finally, petitioners argue that respondents are not substantially prejudiced by the delay because it did not change the way they would have investigated the incident, and respondents failed to make a showing of substantial prejudice in rebuttal.

Respondents oppose petitioners' application and argue that they did not have actual knowledge of the essential facts constituting petitioners' claims within ninety days or a reasonable time thereafter and petitioners did not demonstrate a reasonable excuse for the delay or lack of prejudice to respondents. Respondents presented no evidence in opposition to the petition. They argue that petitioners failed to demonstrate they were medically incapable of filing a Notice of Claim, and failed to submit evidence to substantiate infant petitioner's claimed injuries. Respondents further argue that the Board of Education reports are insufficient to impute knowledge to respondent City of New York, as the Board of Education is a distinct corporate entity from the City. Respondents further argue that the reports are insufficient to demonstrate actual knowledge because they do not allege inadequate supervision or negligent training or hiring. Respondents further argue that petitioners failed to demonstrate that respondents are not prejudiced by the delay, and improperly attempted to shift the burden onto respondents. Finally, respondents argue that the proposed claims are patently without merit as to defendant City, as the City of New York is not a proper party to this action.

Pursuant to General Municipal Law §50-e, timely service of a Notice of Claim is a condition precedent to a tort action against the City of New York. (See Matter of C.N. v. City of New York, 208 A.D.3d 784 [2d Dept. 2022].) The Court may permit the filing of a late Notice of Claim pursuant to General Municipal Law §50-e(5) after considering whether the public corporation acquired actual knowledge of the essential facts constituting the claim within ninety days after the claim arose, whether the petitioner made an excusable error concerning the identity of the public corporation, if the delay would substantially prejudice the defendant public corporation and whether petitioner demonstrated a reasonable excuse for the failure to serve a timely Notice of Claim. (Matter of Molme v. New York City Tr. Auth., 177 A.D.3d 601, 602 [2d Dept. 2019].)

The absence of a reasonable excuse for the delay in filing the Notice of Claim is not fatal to the petition where there was actual notice and absence of prejudice. (Matter of Gabriel v. City of Long Beach, 206 A.D.3d 997 [2d Dept. 2022].) Nevertheless, where a parent alleges that he or she was consumed with an infant's medical care and unable to serve a timely Notice of Claim, it may constitute a reasonable excuse for the delay if supported by evidence demonstrating that the delay was directly attributable to the infant's medical care. (Compare Matter of Ramos v. Board of Educ. of the City of NY, 148 A.D.3d 909 [2d Dept. 2017].)

While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance. (Matter of Mohamed v. New York City, 139 A.D.3d 858 [2d Dept. 2016].) 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." (Matter of Ramos, supra at 911.) Unsubstantiated and conclusory allegations that the municipality acquired actual knowledge of the essential facts constituting the claim through the contents of reports and other documentation are insufficient. (See Humsted v. New York City Health & Hosps. Corp., 142 A.D.3d 1139 [2d Dept. 2016].) Additionally, the mere existence of reports and records, without evidence of its content, is insufficient to impute actual knowledge to the municipality. (See Etienne v. City of New York, 189 A.D.3d 1400 [2d Dept. 2020].) For a report or records to provide actual knowledge of the essential facts constituting the claim, one must be able to readily infer that a potentially actionable wrong was committed by the municipality. (Matter of Taylor v. County of Suffolk, 90 A.D.3d 769 [2d Dept. 2011].)

Here, petitioners established good cause to file a late Notice of Claim, as they demonstrated a reasonable excuse for the delay, that respondents had actual knowledge of the essential facts constituting the claim, and that there is no prejudice to respondents. (See generally M.S. v. Rye Neck Union Free Sch. Dist., (212 A.D.3d 857 [2d Dept. 1/25/2023].) The Court finds that the claims against respondents arose from the October 17, 2022 assault on the infant petitioner, and therefore the ninety-day statutory period to file a Notice of Claim ended on or about January 15, 2023. The instant Petition was filed on March 15, 2023, approximately sixty days later.

Petitioners demonstrated a reasonable excuse for the delay through their production of the affidavit of merit, hospital records and proposed Notice of Claim. They established that the priority was to stabilize infant petitioner's emotional and physical well-being. The unique circumstances of this case are detailed in the proposed Notice of Claim, which describe the deterioration in infant petitioner's mental and physical health in excruciating detail. Specifically, infant petitioner withdrew himself from his family and even demonstrated physical signs of distress, as he began to urinate in his bed at night. Petitioner Rodriguez attested she was so fearful that her son was demonstrating suicidal behavior that she committed him to a psychiatric ward, where he underwent a three-day observation. Petitioners further demonstrated that even after he was released infant petitioner required months of doctors' visits to get his life back on track, and was finally transferred to a new school for a fresh start.

Based upon the foregoing, petitioners demonstrated a reasonable excuse for the brief delay in filing the Notice of Claim. While the Court is always constrained to follow precedent, it is clear that the purpose and intent behind General Municipal Law §50-e is not met by finding petitioners' delay in filing the Notice of Claim was unreasonable. Here, infant petitioner was suffering severe emotional and mental distress due to the physical bullying at respondents' school, and it would be imprudent, and in fact unfair, to expect and require parents to pursue litigation at a time when their focus was, and should be, on the health of their child. It would be equally unjust to punish parents who expend their time and energy on helping their child instead of seeking legal counsel, by not finding that a mere sixty-day delay in filing the Notice of Claim was not due to a reasonable excuse.

Petitioners also demonstrated that respondents had actual knowledge of the essential facts constituting the claim through the school's Occurrence Report that showed respondents' employees participated in and were directly involved in conduct giving rise to petitioners' claims. (See Matter of Orozco v. City of New York, 200 A.D.3d 559 [1st Dept. 2021].) Respondents' argument that the reports were insufficient to establish actual knowledge is without merit, as the report generated was based upon actual involvement by respondents' employees in the bullying investigation, and perpetuated the mental, physical and emotional anguish caused by respondents' meeting with infant petitioner. The report detailed exactly how the incident occurred, that in a meeting on October 20, 2022, infant petitioner informed respondents that the other student scraped the cuts into his hand with a pencil tip, and respondent school was continuing to investigate the incident. Notably, the report indicates that infant petitioner's parents were present and that infant petitioner gave the other student permission to cut his hand, which is refuted by petitioners' proposed Notice of Claim. However, it is undisputed that there was a meeting involving infant petitioner, the principal, and school personnel, and that the school investigated the incident. Therefore, based upon the Department of Education's own report, respondents had actual knowledge of the essential facts constituting the claim. Respondents' argument that the report does not articulate negligent training and hiring or inadequate supervision is irrelevant, as the report must only convey the facts underlying the legal theory on which liability is predicated and not the legal theory itself. (See Matter of Ramos, supra.) Based upon the foregoing, petitioners demonstrated actual knowledge of the essential facts constituting their claim.

Petitioners also demonstrated that respondents were not substantially prejudiced by the short delay in filing the Notice of Claim. (See N.F. v. City of New York, 161 A.D.3d 1046 [2d Dept. 2018].) Petitioners demonstrated that respondents were investigating the incident and had spoken to the parties involved, and therefore were on notice of a potential action against them. Respondents failed to demonstrate any substantially prejudice, as they presented mere inferences without competent admissible evidence to establish prejudice. (See Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455 [2016].) It is noted that while respondents correctly point out that defendant City of New York was not a proper party to the action, as it is not responsible for New York City schools, defendant did not cross-move to dismiss the claims as against City.

Accordingly, petitioners' application for leave to file a late Notice of Claim pursuant to General Municipal Law §50-e(5) is granted and the Notice of Claim is deemed timely served nunc pro tunc.

This constitutes the decision and Order of the Court.