Opinion
0080076/09.
Decided on July 28, 2009.
Plaintiff is represented by Decolator Cohen DiPrisco, LLP.
Defendants are represented by Michael Cardozo, Corporation Counsel.
Rosa Garcia ("Garcia") petitions the Court for leave to serve and file late notice of claim, nunc pro tunc, against the defendants New York City Board of Education and the New York City Department of Education (the "Board and Department of Education") pursuant to New York General Municipal Law ("Gen Mun Law") § 50-3 (5). Garcia argues that the Board and Department of Education had actual knowledge of the incident, and that the delay of less than 30 days did not unfairly prejudice the ability of the Board and Department of Education to investigate the incident. Additionally, if actual notice was mistakenly provided to the Police Department instead of to the Board and Department of Education, this would be an excusable error. Garcia's petition is granted.
Facts
Garcia was employed by the New York City Police Department as a School Safety Officer at P.S. 20, located at 161 Park Avenue, Staten Island, New York. On September 19, 2008, Garcia was injured descending a stairway in the school at a time prior to school dismissal. The Supervisor of School Security, Carmelo Rosa, filled out an Injury and Illness Incident Report (From [ sic] SH 900.2 (for NYPD use)) (the "Report") on the same day. The report detailed the incident by indicating that Garcia slipped at the second level of a stair case with two levels that are described as being "steep." The form further records that Garcia suffered three broken bones in her left foot. On the face of this document are the words ". . . these forms help the employer and PESH [Public Employee Safety and Health Bureau] develop a picture of the extent and severity of work-related incidents."
Petitioner's Notice of Petition, Exhibit "C".
Id.
Id.
Id.
On January 8, 2009, Garcia retained legal counsel. Garcia's counsel submitted a notice of claim with exhibits on January 16, 2009. Petition for Leave to Serve and File Late notice of claim, nunc pro tunc, was filed on March 6, 2009.
Discussion
I. The New York General Municipal Law § 50-e The Gen Mun Law § 50-e (5) provides in part: Upon application, the court, in its discretion, may extend the time to serve a notice of claim . . . In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation . . . acquired actual knowledge of the essential facts constituting the claim . . . or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: . . . whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.
Therefore, Garcia may show that actual notice was had by the municipal corporate identity; that a mistake was made in the corporate identity notified; or that there is a lack of prejudice against the governmental entity being sued occasioned by the delay in notification; or some combination thereof. No one factor is dispositive, and the court has "broad discretion to grant an extension after considering relevant facts and circumstances."
Gen Mun Law § 50-e (5); Welch v. New York City Housing Auth. , 7 AD3d 805 , 806 [2d Dept 2004]; and Pruden v. New York City Board of Ed., 235 AD2d 426 [2d Dept 1996].
Jordan v. City of New York , 41 AD3d 658, 659 [2d Dept 2007]; Matter of Dell'Italia v. Long Isl. RR Corp, 31 AD3d 758, 758-9 [2d Dept, 2006]; and Matter of Morris v. County of Suffolk, 58 NY2d 767, 769 [1982].
Matarrese v. New York City Health and Hosp. Corp., 215 AD2d 7,13 [2d Dept 1995].
Gen Mun Law 50-e (1)(a) requires that a notice of a claim, founded upon a tort and against a public corporation, to be filed within 90 days after the claim arises except in wrongful death actions. When a notice of claim is filed after the 90 day time limit, the court may grant leave to file a late notice of claim. The Court of Appeals has stated in "determining whether to grant such permission [to file a late notice of claim] the court [be] permitted to consider all relevant circumstances [ internal citations deleted]." Therefore, wide discretion is available to apply justice according to particularized facts when granting leave to file a late notice of claim.
Beary v. Rye, 44 NY2d 398, 311 [1978].
In opposition, the respondent argues that the petitioner failed to satisfy the above criteria for granting leave to file a late notice of claim. The purpose of a notice of claim is to allow "an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available." The respondent argues that the petitioner has not met the burden of showing a lack of prejudice against the Department of Education. Contrariwise, petitioner's submissions suggest there should be no prejudice due to filing a late notice of claim. Respondent further states that petitioner has not offered an excuse for a delay. Excuse is not an absolute requirement and the absence of any excuse may not necessarily prevent the granting of leave to make late notice if it is balanced against actual knowledge by, or the lack of prejudice to the municipal corporate entity.
Caselli v. New York, 105 AD2d 251, 252 [2d Dept 1984]; quoting Teresta v. New York, 304 NY 440, 443 [1952]; see also Matter of Portnoy v. City of Glen Cove , 50 AD3d 1041 , 1042 [2d Dept 2008]
Catterson v. Suffolk County Dept of Health Services , 49 AD3d 792 , 794 [2d Dept 2008]; Matter of March v. Town of Wappinger , 29 AD3d 998 , 999 [2d Dept 2006]; and Alvarenga v. Finlay, 225 AD2d 617, 618 [2d Dept 1996].
The plaintiff argues she has submitted actual notice to the Department of Education by the completion of the Report, a form created by a Supervisor of School Security, and that Garcia may therefore be excused a mistake in actual notice provided to the wrong public entity,. By presenting the Report, and the proposed notice of claim, Garcia makes adequate representation that the Department of Education is not unfairly prejudiced in the ability to investigate and analyze Garcia's claims.
Petitioner's Notice of Petition, Exhibit "C".
Petitioner's Notice of Petition, Exhibit "A".
II. The Department of Education had Actual Notice of the Incident
In determining whether to grant leave to file a late notice of claim, great weight is given to the municipal entity having actual notice of the claim. The Department of Education had actual knowledge of Garcia's incident and injuries. A Supervisor of School Security notified the Department of Education with a Report (Form SH 900.2 (for NYPD use)). The report states, "these Forms help the employer and PESH develop a picture of the extent and severity of work-related incidents."
Morris v. County of Suffolk, 88 AD2d 956 [2d Dept 1982], aff'd by 58 NY2d 767 [1982].
Petitioner's 1, Exhibit "C".
When a janitor or office workers were present at the time and place of an alleged incident, the Appellate Division, Second Department held that the mere presence of these employees is not adequate to provide actual knowledge. Mere speculation that an incident report was completed is not actual knowledge. However, investigation of an incident by the Police Department may provide actual knowledge, if "the Police Department had all essential facts in its possession"; and if, under the circumstances of a case, the knowledge may be imputed to the municipal corporation. While the instant case represents a personal injury rather than police action such as an arrest, the information was gathered by the Supervisor of School Security for the purposes of Garcia's employer.
Matter of Smith v. Baldwin Union Free School District, 2009 NY Slip Op 5351, 3 [2d Dept 2009]; and Matter of Bruzzese v. City of New York , 34 AD3d 577 , 578 [2d Dept 2004].
Matter of Bruzzese v. City of New York, 34 AD3d at 578.
Nunez v. City of New York, 307 AD2d 218, 220 [1st Dept 2004].
The Appellate Division, Second Department has "held that where a municipal employee was allegedly injured in the course of his employment and thereafter applied for leave to serve a late notice of claim, the filing of an accident report with the employee's agency or department imported actual knowledge to the municipality which, in conjunction with other circumstances present, warranted the granting of leave." In this instant case, the Department of Education should have been informed by the Report completed by the Supervisor of School Security.
Casselli v. New York, 105 AD2d at 256.
"[W]hat satisfies the statute [Gen Mun Law§ 50-e (1)] is not knowledge of the alleged wrong, but rather, knowledge of the nature of the claim." Actual knowledge must clarify "the connection between the accident and the condition complained of." A proper notice of claim requires: "(1) the name and post-office address of each claimant, and of his attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed to have been sustained so far as then practicable but a notice with respect to a claim against a municipal corporation other than a city with a population of one million or more persons shall not state the amount of damages to which the claimant deems himself entitled." The Report recorded the circumstances of the incident including (1) Garcia's name and address; (2) the alleged cause of injuries claimed; (3) the time, place, and manner in which the claim arose; and (4)the nature of the injuries. The name of the Garcia's attorney is not specified within the Report, but that should not impede acquisition of knowledge of the nature of the claim.
Pico v. City of New York , 8 AD3d 287 , 288 [2d Dept 2004].
Shapiro v. County of Nassau, 208 AD2d 545 [2d Dept 2009].
Petitioner's 1, Exhibit "C".
Respondent relies upon the need for the public corporation to "have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim." In Felice v. Eastport/South Manor Cent. School Dist., a youthful gymnast made oral representations to a coach that students who were to catch her were inadequately trained. The coach failed to make changes and th youth was injured at a school event. The plaintiff in Felice v. Eastport/South Manor Cent. School Dist. submitted that the oral representations to the coach were actual notice. The Appellate Division, Second Department disagreed because the information in a report the school had received had inadequate specificity of "essential facts constituting the claim." Appellate Division, Second Department further clarified, "[e]ven where the public corporation does not have actual knowledge of the essential facts constituting the claim, it may in some cases not be difficult for the claimant to establish the absence of material prejudice." In the instant case, the details of the claim were listed by a Supervisor of School Security and any deficiency could have been researched by the school upon its evaluation of the form.
Felice v. Eastport/South Manor Cent. School Dist. , 50 AD3d 138 , 147 [2d Dept, 2008].
Id. at 150.
Id. at 153.
Distinctions between New York City municipal corporations have been made more complicated since the 2002 amendments to the Education Law providing for increased mayoral control while limiting the power of the Board of Education. Despite political changes, the Board of Education may still be regarded as a distinct public entity. "The legislative changes do not abrogate the statutory scheme for bringing lawsuits arising out of torts . . . and the City cannot be held liable for those alleged torts." Therefore, it is not necessary to file and serve additional notice of claim against the City of New York in this instant case.
Gonzalez v. Esperanza, 2003 US Dist LEXIS 13711, *5 [SD NY 2003].
Perez v. City of New York , 41 AD3d 378 , 379 [1st Dept 2007].
The Report prepared by Garcia's Supervisor of School Security was for the purpose of helping Garcia's employer and the public employee safety bureau develop a picture of the extent and severity of work-related incidents. The Report did so with particularity of the features of the incident including the specific defect in the stairs. This court finds that actual notice was provided to the Department of Education.
III. Lack of Actual Notice to the Department of Education Was
Excusable Error
The Report provided particularized information regarding the incident of September, 19, 2008. Defendant argues that the accident report was not submitted to nor generated by the Department of Education. "[E]xcusable error concerning the identity of the public corporation against which the claim should be asserted" is grounds for permitting leave to serve a late notice. "An error in serving the wrong governmental entity with a notice of claim may be excused if remedied promptly after discovering the mistake." Assuming that actual notice was made available to the wrong municipal entity, the petitioner should not be without recourse, if the error is promptly corrected. The petitioner made an error by providing the Police Department with an actual notice of a claim, as opposed to serving a notice of claim to the Department of Education. The accident report was completed by the Supervisor of School Security, and was for the purpose of helping "the employer and PESH develop a picture of the extent and severity of work-related incidents." A reasonable person might conclude from this wording that the Report serves to inform or advise the municipal corporation of the particulars of an incident.
Petitioner's Notice of Petition, Exhibit "C".
Gen Mun Law§ 50-e.
Ruffino v. City of New York , 57 AD3d 550 , 551 [2d Dept 2008].
Petitioner's Notice of Petition, Exhibit C.
Whether for statutory analysis, for zoning resolutions or for agency determinations, the Court of Appeals looks to the plain meaning to establish the import of a writing. Plain meaning may also be applied to printed explanations on the face of a government report: in this instance the Report filled out by the Supervisor of School Security. The Appellate Division, Second Department regards a writing as unambiguous if it has only a single meaning. Therefore, the plain meaning and unambiguous purpose of the Report completed by the petitioner's supervisor was to inform the petitioner's employer and PESH of facts surrounding the work-related incident. A reasonable person may conclude from that wording that the Department of Education had actual notice of the incident that occurred on September 19, 2008.
Tall Trees Constr. Corp. v. Zoning Bd. of Appeals, 97 NY2d 86, 91 [2001].
Raritan Dev. Corp. v. Silva, 91 NY2d 98, 100 [1997].
Geothermal Energy Corp. v. Caithness Corp. , 34 AD3d 420 , 423 [2d Dept 2006].
The Department of Education avers that the Report was made to the Police Department and not to the Department of Education. Because the petitioner filed the Report with a person titled as the Supervisor of School Security, a reasonable person would assume the individual is in a supervisory role of security for the school system. Hence, it is reasonable that Garcia accepted that a "Supervisor of School Security" completing the report represented the school in which the incident occurred, and therefore represented the Department of Education. If an error sprang from this assumption, it must be the essence of excusable error in actual notice of the wrong government entity. In any event, the error was corrected within 30 days by the submission of a formal notice of claim, and within 90 days by submission of a petition for leave to file a late notice of claim.
The error in this case is one of serving the wrong entity with an actual notice rather than of serving the wrong entity with a notice of claim. If a notice of claim was mistakenly submitted to the Police Department, it would be an excusable error. If actual notice was mistakenly submitted to the Police Department, instead of to the Department of Education, it should be an excusable error, if it was corrected promptly. Reliance upon an excuse for actual notice in error should be regarded similarly to reliance upon an excuse for notice of claim made in error. This Court finds that actual notice to the Police Department instead of to the Department of Education constituted an "excusable error concerning the identity of the public corporation against which the claim should be asserted." IV. Leave to File a Late Notice of Claim Is Not Prejudicial
Gen Mun Law§ 50-e (5).
Ruffino v. City of New York , 57 AD3d 550 , 551 [2d Dept 2008].
Gen Mun Law§ 50-e (5).
A distinction is to be made between filing a late notice of claim and requesting relief from late filing. A leave to file a late notice of claim must be requested within one year and 90 days of an incident and prior to commencement of an action springing therefrom. The incident occurred September 19, 2008. The petitioner filed a Notice of Claim on January 16, 2009, which is 119 days from the date of the accident, or 29 days beyond the maximum of 90 days specified to file a Notice of Claim. The petition for leave to file a late notice of claim, nun pro tunc, was filed on March 6, 2009, which is well within the limit of time for such a petition.
Gen Mun Law § 50-e (5); Scantlebury v. New York City Health and Hospitals Corporation, 4 NY3d 606, 608 [2005]; Camarella v. East Irondequoit Central School Board, 34 NY2d 139, 141 [1974].
Requiring timely notice of claim allows a government entity to "assure the city an adequate opportunity to investigate the circumstances surrounding an accident and to explore the merits of the claim while information is readily available;" and to "protect a public corporation against stale or unwarranted claims and to enable it to investigate claims timely and efficiently." The span of time that would per se preclude investigating merits of a claim and protect against untimely, stale claims is variable and frequently is based upon other considerations in conjunction with the mere passage of time. The clearest expressions of timeliness might be found among instances when there was no notice, neither actual notice or a faulty notice of claim, and yet no prejudice due to passage of time was determined.
Teresta v. New York, 304, 440, 443 [1952]; Sandak v. Tuxedo Union School District, 308 NY 226, 232 [1954]; Markotsis v. Town of Oyster Bay, 262 AD2d 451 [2d Dept 1999].
Heiman v. New York, 85 AD2d 25, 27 [1st Dept 1982], Light v. County of Nassau, 187 AD2d 720 [2d Dept 1992].
The Appellate Division, Second Department has evaluated this contingency. In Matter of Gelish v. Dix Hills Water District, actual notice was received less than one month after the permitted ninety day span in which it is permissible to present a notice of claim, which the Appellate Division, Second Department found to represent a "minimal delay [with] lack of substantial prejudice." In a separate instance the actual gap between the occurrence of an incident and time notice was made was not specified, but notification within "a reasonable time" permitted granting of leave to file a late notice of claim. Six days is also within a time span not felt to be prejudicial to a municipality.
Matter of Gelish v. Dix Hills Water District , 58 AD3d 841 [2d Dept 2009].
Bussey v. City of New York , 50 AD3d 938 , 939 [2d Dept 2008].
Lossino v. New York City Transit Auth., 264 AD2d 383, 384 [2d Dept 1999].
Respondent argues that petitioner had a burden of establishing the Department of Education were not prejudiced by a late notice of claim. Respondent further argues that petitioner failed to meet that burden because the Department of Education were not advised of litigation despite the Report and despite the proposed notice of claim. Respondent argues that it could not investigate the conditions surrounding the incident while the conditions remained unchanged. Firstly, The Report was ipso facto an investigation into the incident. Respondent relies upon the Appellate Division, Second Department's requirement that "notice should provide a sufficient basis for the municipality to conduct an investigation while the facts surrounding the incident are fresh." Secondly, in the instant case, the physical condition of the stairs is stable and will not change within any reasonable period of time. No witnesses are relied upon. It would be improbable that the basic condition of the stairway would appreciably change from the time of the accident, through the taking of post accident photographs, and until the present.
Felice v. Eastport/South Manor Cent. School Dist. at 151, supra; Jordan v. Department of Education of New York at 658, supra.
Aviles v. City of New York, 202 AD2d 530, 531 [2d Dept 1994].
Petitioners Notice of Petition, Exhibit A.
The Appellate Division, Second Department has also examined the nature of the information contained within a proposed notice of claim that would allow leave to file a late notice of claim. If the information within the proposed notice of claim suggests the municipal corporation will not be prejudiced, leave to file late notice of claim may be granted. When an alleged defective condition of a sidewalk was of long duration, a delay of five weeks was termed a "short delay [without] "substantial prejudice to the City in defending the action on its merits." A proposed notice of claim of adequate specificity if submitted with an application may cure a delay in filing a notice of claim if it is "sufficiently specific to assure the appellant a reasonable opportunity to conduct a full and effective investigation regarding the petitioners' claim." A notice of claim served eight days late contained "sufficient allegations to fasten liability' on the county" permitting late notice to be filed. Where medical records were available and a physician witness was employed and available for questioning, late notice of claim could be permitted.
Irizarry v. City of Yonkers, 193 AD2d 746 [2d Dept 1993].
Tarnaras v. Farmingdale Union Free School District, 205 AD2d 545 [2d Dept 1994].
Fritsch v. Westchester County DOT, 170 AD2d 602 [2d Dept 1991].
Leone v. County of Nassau, 225 AD2d 776 [2d Dept 1996].
In the instant case, the petitioner alleges the stairs are defective; provides photographs of the stairs; and specifies that there is a "failure to equip stairs with non skid materials or other traction devices." Any arguable delay the Department of Education endured is not adversely prejudicial. There is no evidence that the condition of the stairs at this time has changed from the time petitioner alleges she had her accident. The relative permanence of the underlying alleged defect in the stairs is comparable to that of the sidewalk in Irizarry. The stairs may be examined at any time, and the essentials of the evidence remain available for inspection by the Department of Education. Although the Department of Education protest that the delay in filing a notice of claim is prejudicial, this Court finds that there is no unfair prejudice against the Department of Education.
Petitioner's 1 Exhibit "A".
Irizarry v. City of Yonkers, 193 AD2d at 746.
Conclusion
Discretion to grant leave to file a late notice of claim may be founded upon one or a combination of: 1) actual notice of a claim by the governmental entity; 2) an excuse, or mistake in notification of the wrong municipal entity; or 3) the lack of actual prejudice against the governmental entity. Firstly, the Department of Education had or should have had actual notice and knowledge of the incident through the Report filed by their Supervisor of School Security. Furthermore, even if it is accepted that actual notification had been mistakenly and in error given to the New York Police Department instead of the Department of Education, The Gen Mun Law § 50-e (5) forgives a mistake and error in notice of claim delivered to the wrong department. Public policy must favor a congruent forgiveness in order to file a late notice of claim for those, who in error, mistakenly believe actual notice has been provided, but to the wrong municipal agency.
Next, it is not necessary to file and serve notice of claim against the City of New York. Finally, this claim does not depend upon individual memories or transitory individuals whose addresses are unknown. The stairs and stairway are available for inspection in their pre-accident condition until the Board of Education or the Department of Education make physical alterations. Hence, there is no prejudice caused by filing a late notice of claim.
Accordingly, it is hereby:
ORDERED: that the petitioner Rosa Garcia's petition to file and to serve a late notice of claim, nunc pro tunc as of January 16, 2009, against the respondents New York City Board of Education and the New York City Department of Education is granted in its entirety. Copies of the previously filed Notice of Claim shall be attached to a copy of this order and shall be served upon the New York City Board of Education and the New York City Department of Education within 20 days of notice of entry of this order.
ENTER,