Opinion
102170/05.
Decided September 29, 2005.
Petitioner seeks leave to renew his prior application for leave to serve a late notice of claim against NYCHA; such leave is granted, and upon renewal, the Court adheres to its original decision denying leave.
By order to show cause dated February 16, 2005, petitioner sought leave to serve a late notice of claim on NYCHA. Petitioner's proposed notice of claim alleged that, on September 8, 2004, he injured his leg while in an elevator on NYCHA property, when he kicked an emergency door after the elevator doors would not open. This application for renewal was made within a year and ninety days of the alleged accident.
On his original application, petitioner's counsel stated that a timely notice of claim was not served because of an error made in identifying the proper public corporation against which the claim should have been asserted. In support of petitioner's assertion that NYCHA had actual notice of the defective condition of the elevator, he submitted an affidavit from a tenant in the subject building, Yvonne Ramirez, in which she (1) stated there were problems with the subject elevator before petitioner's injury and (2) described the clean-up and repair of the elevator after petitioner's accident. Finally, petitioner asserted that NYCHA was not prejudiced by the five month delay because the elevator was cleaned and the emergency door repaired after the accident.
It is well settled that when considering a motion to file a late notice of claim, the Court may take into account a number of factors, including: (1) the reasonableness of the excuse offered for the delay in failing to timely file a notice of claim; (2) whether the respondent had knowledge of the essential facts constituting the claim; and, (3) whether the respondent was prejudiced by the applicant's failure to comply with GML § 50-e.
By decision, order and judgment dated March 25, 2005, this Court applied the three-part test set forth in General Municipal Law § 50-e and denied petitioner's application for leave to serve a late notice of claim. The Court held that petitioner failed to offer an adequate excuse for the confusion about which entity to sue because there was no question that NYCHA was the owner of building where petitioner claims he was injured. The Court also found that the Ramirez affidavit did not satisfy the actual notice requirement of GML § 50-e because the affidavit did not provide evidence that NYCHA caused or had notice of any accident involving this petitioner, much less notice of an accident related to an elevator defect. Finally, this Court held that NYCHA was prejudiced by the delay because it was precluded from conducting a timely investigation in connection with its defense.
On this motion to renew, petitioner does not address the excuse for the delay. Instead, he focuses on the actual notice requirement and in support, he submits, as "new evidence," a revised affidavit from Ms. Ramirez, an affidavit from investigator William Holden and other materials, including petitioner's medical records predating the accident, a post-accident FDNY report, and New York City Buildings Department records obtained from that agency's website.
Petitioner has failed to demonstrate that the "new" materials were previously unavailable, and fails to offer a valid excuse for failing to submit this evidence on his original application. Moreover, even if petitioner met his burden for renewal, the "new" evidence does demonstrate that NYCHA had actual notice of petitioner's claim or that NYCHA would not be prejudiced by the late filing.
Renewal is warranted only where new information arises which existed at the time the original motion was made, but which was unavailable or unknown to that party at the time of the prior application. Lee v. Ogden Allied Maintenance Corp., 226 AD2d 226. CPLR 2221(e) also requires, as a condition for renewal, that the movant state a "reasonable justification for the failure to present such facts on the prior motion."
In support of his renewal application, petitioner submits the revised affidavit of Yvonne Ramirez. Ms. Ramirez was both known and available at the time of the original motion; thus petitioner fails the first requirement of the renewal test. Neither does petitioner satisfy the reasonable justification requirement. In the current version of her affidavit, Ms. Ramirez states that petitioner's counsel did not previously obtain a detailed explanation of the events due to "time constraints;" this is also conceded by petitioner's counsel. This does not constitute a reasonable excuse for failing to offer a more detailed affidavit on the original motion. In any event, in her supplemental affidavit, Ramirez states that while petitioner was in the elevator she called 911 and NYCHA emergency and told both entities that petitioner was stuck in the elevator. Clearly, notice to the 911 operator does not constitute notice to the NYCHA; the 911 operator is under the control of the New York City Police Department. Moreover, Ramirez does not state whom she spoke with at NYCHA. In any event, Ramirez reported that petitioner was stuck in the elevator and not that he had injured his leg. Actual or constructive notice of the physical condition of the elevator is not sufficient to establish that NYCHA had actual notice of plaintiff's claim, to wit, that NYCHA was liable for causing petitioner's injuries. See Thomann v. City of Rochester, 256 NY 165, 172 ("What satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the claim.") For these reasons, petitioner fails to demonstrate that NYCHA had actual knowledge of this claim. See Ryder, et al. v. Garden City School District, 277 AD2d 388.
The Court does not here opine on whether petitioner's decision to kick the emergency door, and not a defect in the elevator mechanism, was the proximate cause of his injuries.
In further support of renewal, petitioner now submits the affidavit of investigator William Holden. Counsel admits that he retained this investigator after receipt of this Court's decision denying the original application in order to obtain additional evidence of actual notice. Examination of the Holden affidavit reveals that it offers no information that was not previously available to petitioner. Holden recites purported conversations with tenants who stated there were problems with the elevator before the subject incident and that NYCHA staff cleaned blood from the elevator after petitioner's accident. In addition to this hearsay affidavit's lack of probative value on the issue of whether NYCHA had actual notice of petitioner's claim (and the affidavit's admissibility problems), petitioner could have located these tenants and obtained their affidavits at the time of the original application; petitioner has failed to offer any excuse for not doing so.
As for the balance of petitioner's "newly discovered evidence," petitioner's medical records relating to treatment for "9/11" post-traumatic stress are irrelevant to this application for leave to serve a late notice of claim. Likewise, the two New York City Department of Buildings complaint overviews, referencing an complaint made about the subject elevator to the City before the subject accident and one which post-dates the accident, are irrelevant to the issue of whether NYCHA had actual notice of petitioner's claims within the 90 day as-of-right filing period or within a reasonable period thereafter.
Petitioner also submits a New York City Fire Department report concerning removal of persons from a stalled elevator on September 29, 2004, three weeks after petitioner's accident. This is irrelevant to this application.
Finally, petitioner submits an unsigned copy of the transcript of the statutory hearing conducted by the City of New York. There is nothing in the testimony which establishes an excuse for the delay, actual notice to NYCHA, or any absence of prejudice to NYCHA were this application granted.
The transcript cannot be relied on to show notice of the claim to NYCHA for two reasons. First, notice to the City of New York does not constitute notice to NYCHA, a distinct legal entity. Torres v. New York City Housing Authority, 261 AD2d 273, 690 NYS2d 257 (1st Dept. 1999). Second, the hearing was conducted on February 7, 2005, five months post-accident and one week before the original application for leave to serve a late notice of claim was made.
In addition to seeking renewal of his prior application for leave to serve a late notice of claim, petitioner's counsel also asks that in the event that the Court denies renewal based on the "new" evidence submitted, that petitioner be given discovery so as to obtain additional evidence in support of his application. Movant has not demonstrated entitlement to that relief, particularly because it would not disclose actual notice of petitioner's claim.
Accordingly, petitioner's motion for leave renew his application for leave to serve a late notice of claim is granted, and upon renewal, the Court adheres to its original decision, judgment and order denying leave to serve a late notice.
This decision constitutes the order and judgment of the Court.