Opinion
05-28-2024
Paez MELGAREJO, Plaintiff–Respondent, v. The CITY OF NEW YORK, et al., Defendants–Appellants, John Doe 1–10 et al., Defendants.
Anna J. Ervolina, Brooklyn (Theresa Frame of counsel), for appellants. Matt Simon Law, New York (Matt C. Simon of counsel), for respondent.
Anna J. Ervolina, Brooklyn (Theresa Frame of counsel), for appellants.
Matt Simon Law, New York (Matt C. Simon of counsel), for respondent.
Singh, J.P., Kennedy, Rodriguez, Pitt–Burke, Michael, JJ.
Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about October 20, 2023, which, inter alia, granted plaintiff's motion to renew and reargue his opposition to defendants’ motion to dismiss the complaint and, upon renewal, vacated the prior order dismissing the complaint, denied the motion to dismiss, and reinstated the complaint, unanimously modified, on the law, plaintiff's motion to renew and reargue denied to the extent it sought reinstatement of the complaint as against defendant NYC Transit Authority, the complaint dismissed as against defendant NYC Transit Authority, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint as against defendant NYC Transit Authority.
In its prior order, the court dismissed the complaint as against both defendants on the ground that the notice of claim served on defendant NYC Transit Authority was untimely. The court properly granted plaintiff's motion and reinstated plaintiff's complaint as against defendant City of New York (City), as plaintiff's notice of claim against the City was timely served on September 10, 2020 (see Murphy v. Harris, 210 A.D.3d 410, 411–412, 177 N.Y.S.3d 559 [1st Dept. 2022] [discussing COVID–19 pandemic-related executive orders and tolling period]).
[1, 2] The court erred, however, in concluding that plaintiff's hospitalization from the February 12, 2020 accident until April 11, 2020 rendered timely plaintiff's January 25, 2021 notice of claim upon defendant NYC Transit Authority (see Thompson v. Metropolitan Transp. Auth., 112 A.D.3d 912, 914, 977 N.Y.S.2d 386 [2d Dept. 2013]; cf. CPLR 208[a] [toll for periods of "disability because of infancy or insanity"]). Although physical incapacity may be properly considered as a reasonable excuse under General Municipal Law § 50–e (5) for the failure to timely file a notice of claim (see e.g. Matter of Casale v. City of New York, 95 A.D.3d 744, 744, 945 N.Y.S.2d 92 [1st Dept. 2012]; Matter of Mandia v. County of Westchester, 162 A.D.2d 217, 218, 556 N.Y.S.2d 868 [1st Dept. 1990]), it is relevant only upon timely motion for leave to file a late notice of claim "made before or after the commencement of the action but not more than one year and 90 days after the cause of action accrued" (Pierson v. City of New York, 56 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331 [1982]; see General Municipal Law § 50–e [5]).
Here, plaintiff's time to file a notice of claim or an application for leave to file a late notice of claim expired on December 28, 2020 and December 28, 2021, respectively (see Murphy, 210 A.D.3d at 411–412, 177 N.Y.S.3d 559). Plaintiff's January 25, 2021 notice of claim upon defendant NYC Transit Authority was thus untimely, and plaintiff failed thereafter to move within the prescribed period for leave pursuant to General Municipal Law § 50–e (5) (see e.g. Zayed v. New York City Dept. of Design and. Constr., 157 A.D.3d 410, 410, 66 N.Y.S.3d 124 [1st Dept. 2018]; Singleton v. City of New York, 55 A.D.3d 447, 447, 865 N.Y.S.2d 600 [1st Dept. 2008]).
Additionally, plaintiff's arguments based on estoppel or alleged waiver are without merit (see e.g. Keeney v. New York City Hous. Auth., 168 A.D.3d 581, 582, 93 N.Y.S.3d 13 [1st Dept. 2019], lv denied 35 N.Y.3d 901, 2020 WL 1519661 [2020]; Badgett v. New York Health and Hosp. Corp., 227 A.D.2d 127, 128, 641 N.Y.S.2d 299 [1st Dept. 1996]).