Opinion
No. 155693/2016.
09-05-2017
In the Matter of the Petition of J.E., an infant, by his m/n/g Jazmine LOPEZ, Petitioner, v. The CITY OF NEW YORK and The New York City Housing Authority, Respondents.
Halina Radchenko, Esq., Hach & Rose, L.L.P., New York, for Petitioners. Jonathan Goldsmith, Krez & Flores, LLP, New York, for Respondent New York City Housing Authority. Corporation Counsel, New York, for Respondent City of New York.
Halina Radchenko, Esq., Hach & Rose, L.L.P., New York, for Petitioners.
Jonathan Goldsmith, Krez & Flores, LLP, New York, for Respondent New York City Housing Authority.
Corporation Counsel, New York, for Respondent City of New York.
CARMEN VICTORIA ST. GEORGE, J.
According to petitioner Jazmine Lopez, on January 6, 2016, her son, J.E., slipped and fell in the bathroom of their residence, 10 Catherine Slip, Apartment 7B, and fractured his hip. Allegedly, he fell due to a water leak. Petitioner asserts that the leak was the result of respondents' negligence.
Promptly after the accident, on March 11, 2016, petitioner served a notice of claim on both the City of New York (the City) and the New York City Housing Authority (N.Y.CHA). The notice described the incident in detail and included photographs of the area around the leak and of the infant's scars following surgery. However, the notice set forth the accident date as January 6, 2015 instead of January 6, 2016. As a result, on May 14, 2016, the City Comptroller rejected the claim as untimely. In response, on May 24, 2016, petitioner mailed a new notice of claim which was identical to the first but contained the proper date of accident. On July 8, 2016, petitioner commenced this proceeding, which seeks leave to file the late notice of claim nunc pro tunc or, alternatively, granting leave to amend the original notice of claim nunc pro tunc.
Both respondents oppose the petition. The basis of the City's opposition is three-fold. First, it argues, the City is not a proper party to the underlying lawsuit because it does not own or control 10 Catherine Slip, the building where the accident occurred. In support, it annexes evidence from the senior title examiner for the City's law department showing that NYCHA, a separately incorporated entity, owns the building. Second, it argues that petitioner had no right to serve the second notice of claim on it before it commenced this petition. Third, it raises challenges to the merits of petitioner's application. NYCHA's opposition contends that petitioner has not justified her application under General Municipal Law 50–(e). In particular, it contends that it did not have timely notice of the incident, the delay was not due to settlement talks, the typographical error was not excusable, and petitioner has not demonstrated a lack of prejudice to NYCHA. Moreover, it states that leave to amend the notice nunc pro tunc should be denied because of the appearance of prejudice to NYCHA.
Under General Municipal Law section 50–e(1)(a), prior to the commencement of an action against a public corporation and within ninety days after the claim arises, the proposed plaintiff must file a notice of claim upon the corporation. Section 50–e(5) of the law allows a party to bring an application for leave to serve a late notice of claim within one year and ninety days of the incident. While the court has the discretion to grant or deny the application (see Richardson v. New York City Hous. Auth., 136 AD3d 484, 485 [1st Dept 2016] ), it must consider whether the corporation had actual knowledge of the pertinent facts; whether the claimant is an infant, is deceased, or is mentally or physically incapacitated; whether the claimant committed an excusable error, serving the wrong government entity; whether the claimant's delay was due to settlement negotiations with the entity; or whether, if the delay was in the electronic filing system, the attempted submission was timely and the claimant promptly corrected the error ( General Municipal Law § 50–e(5).
After careful consideration, the Court denies the application as it relates to the City of New York, as it neither owns nor controls the property where the incident occurred and therefore is not a proper party. Because of this, the Court does not reach the City's other arguments. The Court grants the application as it relates to NYCHA, and allows the amendment nunc pro tunc. Relying on Bischert v. City of Westchester (212 A.D.2d 529, 530 [2nd Dept 1995] ), NYCHA states that infancy alone is not a sufficient basis to grant a petition to file a late notice. Although this is correct, infancy "is a factor that the court must consider" ( Melissa G. v. North Babylon Union Free School Dist., 50 AD3d 901, 902 [2nd Dept 2008] ). Moreover, the First Department, which provides the controlling authority, recently found that a trial court abused its discretion when it dismissed a complaint based on its failure to serve a timely notice of claim against NYCHA (Eboni B. v. New York City Hous. Auth., 148 AD3d 486 [1st Dept 2017] ). Even though the infant had no reasonable excuse, the respondent had no actual knowledge of the claim, and there was no apparent nexus between the delay and the infancy, "the [claimant's] infancy weighs in favor of granting leave to serve a late notice of claim ..." (Id. at 4487). The importance of the infancy was critical, as the court denied the mother's application to serve a late notice of claim on facts that were otherwise identical (Id. ).
Other factors also militate in favor of granting the relief in question. NYCHA is correct that the original notice of claim did not provide it with actual notice of the accident because the date was incorrect and this led NYCHA to believe it had no obligation to investigate the claim. Nevertheless, the delay was quite brief. Indeed, petitioner served NYCHA with a new notice of claim within ten days of her receipt of the letter informing her of its untimeliness, and within less than one-and-a-half months after the expiration of the ninety-day limitations period. Thus, the delay was relatively brief. (See Meacham v. New York City Health & Hospitals Corp., 77 AD3d 570, 570 [1st Dept 2010] [involving delay of under one month] ). Although this notice was procedurally defective, it did provide NYCHA with knowledge of the critical facts of the claim and of the claimant's intent to move forward (See Ramos v. New York City Transit Auth., 60 AD3d 517 [1st Dept 2009] [finding that, although complaint did not obviate need for notice of claim or petition to allow for late notice, it did provide the respondent with notice of the underlying facts] ). Further, courts have allowed claimants to amend notices of claim to correct accident dates. This is even true where the error made "it appears that the notice of claim was served beyond the 90–day statutory period" ( Sanchez v. City of New York, 87 AD3d 576, 576 [2nd Dept 2011] ; see Perry v. City of New York, 246 A.D.2d 380, 381 [1st Dept 1998] ).
Based on the above, therefore, it is
ORDERED that the petition is dismissed as it relates to the City of New York; and it is further
ADJUDGED that the petition for leave to serve an amended notice of claim as against NYCHA is granted; and it is further
ORDERED that petitioner shall commence an action and purchase a new index number in the event a lawsuit arising from this notice of claim is filed.