Opinion
Index No. 17702/2009
06-22-2023
Martha Florexile-Victor, Plaintiff, v. Carline Douglas, Claudia Thomas, Elsie Louie, James B. Heft, Monsirat T. Bonojo and Coney Island Hospital, Defendants.
Martha Florexile-Victor Pro-Se Plaintiff Joseph Reynolds Asst. Corporation Counsel Attorneys for Defendants
Unpublished Opinion
Martha Florexile-Victor Pro-Se Plaintiff
Joseph Reynolds Asst. Corporation Counsel Attorneys for Defendants
KATHERINE A. LEVINE, J.
ORDERED that Plaintiff's sole remaining claim of Assault and Battery is dismissed with prejudice for failure to file a notice of claim as required by General Municipal Law ("GML") §50-e(1)(a) or to request a late notice of claim pursuant to GML § 50-e(5). This case was initially filed in 2009. Defendant Coney Island Hospital ("Hospital") moved in August 2009 to convert the action into an Article 78 proceeding on the ground that the gravamen of her complaint was that the hospital unlawfully terminated her.
By decision dated January 5, 2010, the Hon. Robert J. Miller granted defendant Coney Island's motion to convert the complaint into an Article 78 proceeding pursuant to CPLR § 103(c) because the gravamen of her complaint was a challenge to her termination after an administrative hearing. Justice Miller ordered that plaintiff have 60 days to refile a proper notice of petition seeking the relief of reinstatement to her job position and for back pay. The court also found that plaintiff appeared to allege assault and battery claims against both the city and specific individuals. He therefore granted plaintiff 60 days to file and summons and complaint against those parties.
Of particular pertinence to the instant matter, Justice Miller considered the City's assertion that plaintiff failed to file a notice of claim with respect to her claims of assault and battery and they should be dismissed. Since the one year and 90 days statute of limitations had not yet expired, Justice Miller found that plaintiff still had a right to file a petition for a late notice of claim.
On May 15, 2012, the case was administratively marked off the calendar and in June 2013 plaintiff moved to restore her case to the active calendar. By decision dated November 18, 2013, the Hon. Sylvia G. Ash deemed the action abandoned, since it had been marked off the trial calendar for more than one year without its restoration to the trial calendar and denied her motion. Justice Ash also found that plaintiff failed to demonstrate that potentially meritorious cause of action existed or that she had a reasonable excuse for delaying prosecution of the claim so as to warrant the case's restoration to the calendar. Justice Ash noted that the statute of limitations had now expired on her claims and that the court was therefore without authority to excuse plaintiff's failure to bring a timely claim or make a proper showing to restore her case which was deemed abandoned. Justice Ash never mentioned plaintiff's failure to file a petition for a late notice of claim.
In Florexile-Victor v. Douglas, 135 A.D.3d 903 (2d Dept. 2016), the Second Department reversed Justice Ash's order. The Court rejected the hospital's argument that CPLR § 3404, which requires a case that is marked "off" or struck from the calendar and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed for neglect to prosecute, applied to this pre note of issue case The Second Department also found there was no 90 day notice pursuant to CPLR § 3216 or an order dismissing the case pursuant to 22 NYCRR 202.27. The Second Department therefore restored the case to the calendar. Again, the Court did not mention plaintiff's failure to file a petition for a late notice of claim.
By order dated July 31, 2019 the matter was restored to the active calendar. In February 2020, defendants moved to dismiss the petition pursuant to CPLR §§ 7804(f) and 3211 on the grounds that petitioner never complied with Justice Miller's Order to file a new Article 78 petition or complaint and that the statute of limitations for filing such petition or complaint had long passed Defendants also sought to dismiss the petition to the extent that the court considered it a proper mechanism to bring claims for assault and battery because plaintiff failed to file a notice of claim or a petition for late notice of claim as required by GML § 50-e with respect to her claims for assault, and for failure to state a cause of action.
By decision dated July 28, 2021, this Court granted the City's motion to dismiss the CPLR Article 78 proceeding since the four month statute of limitations in which to bring the proceeding had long since expired. The court reserved judgment on whether the claim for assault and battery should be dismissed pending submission of briefs by the parties as to what effect the Second Department's failure to discuss the notice of claim issue had upon the instant motion to dismiss.
The Court first notes that Justice Miller's order directing plaintiff to bring a petition for leave to file a notice of claim constitutes the law of the case. In both state and federal court, a judicial decision concerning an issue of law made at one stage of the litigation becomes the "law of the case," i.e., "binding precedent, to be followed in subsequent stages of the same litigation." Firestone v Berrios, 42 F.Supp.3d 403, 411 [ED NY 2013], citing Scottish Air Intl., Inc. v British Caledonian Group, PLC., 152 FRD 18, 24 [SD NY 1993]. See, Collins v Indart-Etienne, 59 Misc.3d 1026, 1033-1034 (Sup. Ct., Kings Co. 2018). As compared to res judicata (claim preclusion) and collateral estoppel (issue preclusion), which generally deal with preclusion after judgment, the law of the case addresses the potentially preclusive effect of judicial decisions made in the course of single litigation "before final judgment." People v Evans, 94 N.Y.2d 499, 502 (2000). See, Collins, supra, 59 Misc.3d at1043.
Service of a notice of claim within 90 days of accrual of the claim is a condition precedent to commencing a tort action against a municipality or a public Municipal Law ("GML") § 50-e; New York City Health and Hospitals Corporation Act § 20(2), as added by L 1969, ch 1016, sec 1, § 20, as amended by L 1990, ch 804, § 122]; Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 535 (2006); Pales v. N.Y.C. Health & Hosps. Corp., 2023 NY App. Div. LEXIS 2566 (2d Dept. 2023); Parker v. City of New York, 206 A.D.3d 936, 937 (2d Dept. 2022); Watts v City of New York, 186 A.D.3d 1574, 1575. GML § 50-e (1) requires that the notice be served within 90 days after the claim arises. Where a plaintiff fails to timely serve a notice of claim or to timely move for leave to extend the time to serve a notice of claim (see General Municipal Law § 50-e[5]), the court is without authority to grant the plaintiff leave absent a finding of equitable estoppel. Pales, supra at *3; Watts, supra, 1 86 A.D.3d at 1575.
A municipal defendant will only be estopped from moving to dismiss for failure to file a notice of claim where its conduct was "calculated to, or negligently did, mislead or discourage a party from serving a timely notice of claim and when that conduct was justifiably relied upon by that party."' Pales supra citing to Khela v City of New York, 91 A.D.3d 912, 914 quoting Mohl v Town of Riverhead, 62 A.D.3d 969, 970 (2d Dept. 2009). "The doctrine of equitable estoppel is to be invoked sparingly and only under exceptional circumstances." Sanchez v Jericho S.D., 180 A.D.3d 828, 830 (2d Dept. 2020), quoting Ceely v New York City Health & Hosps. Corp., 162 A.D.2d 492, 493 (2d Dept. 1990 ). See, also, Incorporated Vil. of Freeport v Freeport Plaza W., LLC, 206 A.D.3d 703, 703-704 (2d Dept. 2022). In Pales, supra the fact that the defendants conducted an examination of the claimant pursuant to General Municipal Law § 50-h, some three years after she filed her lawsuit, prior to moving to dismiss did not equitably estop them from raising the motion to dismiss due to lack of timely service of a notice of claim. See, Wade v. New York City Health and Hospitals Corp., 16 A.D.3d 677 (2d Dept. 2005).
In light of the above, it is ORDERED that Plaintiff's sole remaining claim of assault and battery is dismissed with prejudice. Plaintiff, undisputedly failed to file a notice of claim as required by GML § 50-e(1)(a) or request to file a late notice of claim within the one year and 90 day statute of limitations, as directed by Justice Miller. This court has assiduously reviewed Justice Ash's decision and the decision of the Second Department in 2016 restoring Plaintiff's case to the calendar. Neither decision addressed plaintiff's failure to file a notice of claim. See Florexile-Victor v. Douglas, 135 A.D.3d 903 (2d Dept. 2016). As set forth above, filing a notice of claim is a condition precedent to bringing a personal injury claim against any of the defendants. There is no evidence that defendants engaged in conduct was "calculated to, or negligently did, mislead or discourage a party from serving a timely notice of claim." Rather it seems that both parties neglected to pursue the notice of claim issue before Justice Ash and the Second Department. Should the Appellate Division determine that it implicitly ruled on the notice of claim issue in its 2016 decision then it can accordingly inform the parties of this ruling.
This constitutes the decision and order of the Court.