Summary
In Seif, however, the petitioner gave no reason for its initial failure to recognize the City as owner, while in the instant case the error was excusable, as described above.
Summary of this case from In Matter of Fernandez v. City of New YorkOpinion
August 24, 1995
Appeal from the Supreme Court, Bronx County (Douglas McKeon, J.).
Petitioner Katherine Seif was allegedly injured on or about February 23, 1993 when she slipped and fell outside her apartment building which is designated as 2700 Randall Avenue, Bronx, New York. Petitioner served a notice of claim upon respondent the City of New York on or about May 24, 1993 and a statutory General Municipal Law § 50-h hearing was held on September 17, 1993. During the hearing, Ms. Seif testified that although the sidewalk in front of her "house" had been shoveled, the left side of the path had not been cleared well leaving a sheet of ice upon which she slipped and fell, injuring her shoulder.
On or about November 16, 1993, petitioner moved for leave to file a late notice of claim, asserting, inter alia, that it had "[o]nly recently" been discovered that the building was owned by the Housing Authority. The IAS Court granted leave in a brief order holding, inter alia, that petitioner provided a valid excuse for the delay. The Housing Authority appeals and we now reverse.
While we are mindful of the fact that the IAS Court has broad discretion to permit the late filing of a notice of claim, giving due consideration to the various statutory considerations set forth in General Municipal Law § 50-e(5) ( Matter of Feliciano v New York City Hous. Auth., 188 A.D.2d 296; Matter of Andrews v Village of Sherburne, 140 A.D.2d 790, lv denied 72 N.Y.2d 807), in this case we find that the IAS Court abused its discretion.
Initially, we note that petitioner is required to provide an adequate excuse for the delay in filing the notice of claim ( Chattergoon v. New York City Hous. Auth., 161 A.D.2d 141, 142, affd 78 N.Y.2d 958; Pavone v. City of New York, 170 A.D.2d 493; Matter of Barzaga v. New York City Hous. Auth., 204 A.D.2d 163). Petitioner, however, has failed to do so and her attorney's affirmation that "[o]nly recently * * * this office became aware that the owner of the premises was The New York City Housing Authority" amounts to nothing more than law office failure, i.e., to properly research what entity owned the property in the first instance.
The fact that the City of New York was properly and timely served is of no moment as the owner of the building, as we have already pointed out, could easily have been ascertained ( Pavone v. City of New York, supra, at 493; Matter of D'Andrea v. City of Glen Cove Pub. Schools, 143 A.D.2d 747). In any event, no evidence is presented that the Housing Authority is an alter ego of the City of New York and notice to the City may not be imputed to the Authority ( Pavone v. City of New York, supra; see also, Kalenda v. Buffalo Mun. Hous. Auth., 203 A.D.2d 937, lv denied App. Div., 4th Dept, July 1, 1994).
Respondent Housing Authority also claims to be prejudiced by petitioner's untimely notice. While petitioner testified, at the section 50-h hearing, that she slipped and fell on a sheet of ice, the proposed notice of claim states that the Housing Authority was negligent in "causing, allowing, permitting and maintaining a * * * cracked, raised, irregular * * * condition on said sidewalk and further in permitting and allowing snow and ice to accumulate" (emphasis added). The Housing Authority, as a result of the delay, was deprived of an opportunity to examine and investigate the allegedly defective condition of the sidewalk at or around the time of the incident due to petitioner's late notice.
Lastly, petitioner's vague, unsubstantiated argument that the Housing Authority had actual notice of the claim because an unidentified worker for the Housing Authority was informed by petitioner's nurse's aide when, where and why Mrs. Seif had fallen is insufficient to justify the relief sought ( Matter of Barzaga v. New York City Hous. Auth., supra, at 164; Lopez v. New York City Hous. Auth., 193 A.D.2d 473), as the affidavit contains nothing more than conclusory assertions totally devoid of any specific statements of what was actually communicated or the identity of the maintenance man.
Concur — Murphy, P.J., Rubin, Ross, Asch and Tom, JJ.