Opinion
5666/09.
Decided December 15, 2009.
The petitioner is represented by Dubow, Smith, Marothy, by Karin Z. Mirtsopoulos, Esq., of counsel, the respondent is represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Monica Kelly, Esq., of counsel.
Upon the foregoing papers, the application by petitioner Chantel Sharpe, an infant, by her mother and natural guardian, Willie Ann McLaurin, for an order deeming her notice of claim timely served nunc pro tunc, pursuant to General Municipal Law § 50-e, and for amendment of the notice of claim is, in all respects, denied.
Chantel Sharpe (Chantel) was born on February 18, 1995. From her birth until the summer of 2004, she resided with her mother at 82 Hull Street in Brooklyn (the "Hull premises"). For about 40 hours a week, while her mother went to work, she was cared for by her grandmother, Sue Ana McLaurin, at the latter's apartment at 691 Glenmore Avenue in Brooklyn (the "Glenmore premises"). At all relevant times, the Hull premises was owned by Erskine Agee and Elinor Agee and the Glenmore premises was owned by the City of New York (the City). In March 1997, Chantel was tested for levels of lead in her blood and, as a result of the testing, she was diagnosed with lead poisoning. On September 1, 1998, her mother retained an attorney to commence an action against the persons or entities allegedly responsible for Chantel's lead poisoning. Subsequently, the attorney sought to ascertain the owners of the Hull premises and the Glenmore premises and to obtain records pertaining to the levels of lead found in the paint at those locations. Once the City's ownership of the Glenmore premises was confirmed and "it was substantiated that Willie Ann had and has a meritorious claim", a notice of claim was served upon the City (on June 20, 2000) on behalf of Chantel. Because she did not serve the notice of claim within 90 days after her claim accrued, petitioner now seeks leave to deem the original notice of claim as timely served. Petitioner also requests leave to amend her notice of claim so as assert a broader exposure period and that the City had a special duty to Chantel which it violated by failing to properly inspect the Hull premises. In seeking leave to serve a late notice of claim relating to an alleged lead paint condition at the City-owned Glenmore premises and the privately-owned Hull premises, petitioner argues that the delay in serving the notice of claim was reasonable because of Chantel's infancy and because, upon being retained, petitioner's attorney needed time to promptly investigate the relevant facts. Petitioner further maintains that the City had actual and contemporaneous knowledge of the facts giving rise to the claims herein based upon Chantel's elevated blood lead levels and the City's knowledge of the presence of lead-based paint in the subject premises.
Accordingly to the notice of claim, Chantel was first diagnosed with elevated lead levels in her blood on or about September 24, 1998.
The proposed amended notice of claim lists 14 dates on which Chantel was allegedly diagnosed with blood lead levels of 3 or more micrograms per deciliter, the first on September 19, 1995 (when she was 7 months old) and the last on February 13, 2004. The first time the blood level was diagnosed as 11 micrograms per deciliter — which petitioner alleges constitutes "lead poisoning" — was on March 25, 1997.
In opposition to the motion, the City asserts that petitioner has not presented a reasonable excuse for the delay of ten years in moving for relief. With respect to the amendments sought by petitioner, the City argues that it may not be held liable for a failure to inspect privately-owned premises (the Hull premises) and that it would be prejudiced if petitioner were permitted to expand the exposure period since it had no knowledge of petitioner's claim. The City points out that, although the New York City Department of Health (DOH) inspected the Glenmore premises on October 5, 1998, only three of the 208 areas of the apartment tested positive for the presence of lead and, of those three areas, one was intact paint and the other two were inaccessible to the child because they were padlocked. The City further notes that, on January 20, 1999, DOH inspectors reported that all violations at the Glenmore premises had been remedied. The City maintains that any lack of knowledge by petitioner regarding the notice of claim requirements is no excuse for the failure to timely file a notice of claim, especially since she retained an attorney in September 1998. The City also maintains that petitioner's service of a notice of claim on June 20, 2000 did not constitute notice to the City of a claim. The City further asserts that, since it had no notice of the claim, it would be prejudiced if the requested relief were granted. The City points out that, among other things, there was no finding by DOH to indicate that the Glenmore premises could be the source of the infant's elevated blood lead levels and several reasons for believing that the Hull premises was the source of her injuries.
In reply, petitioner notes that there was not a ten-year delay in serving a notice of claim (as opposed to seeking leave to do so); rather, a notice of claim was served on June 20, 2000. Although a period of 21 months passed from the time she retained counsel in September 1998 until the notice of claim was served, petitioner states that there were "numerous legitimate reasons which excuse the delay"; namely, counsel's investigation of the merits of her claim and his identification of the City as owner of the Glenmore premises. With respect to the issue of prejudice, petitioner faults the City for failing to demonstrate that it ever conducted an investigation and was unable to locate necessary information.
Petitioner was required to file a notice of claim within 90 days after the claim accrued as a condition precedent to commencement of an action against the City ( see General Municipal Law § 50-e [a]). Here, according to the notice of claim which petitioner filed on June 20, 2000, she "discover[ed] the primary condition on which the claim is based" ( Wetherill v Eli Lilly Co., 89 NY2d 506) on September 24, 1998 when Chantel was first diagnosed with elevated lead levels in her blood. The notice of claim was, therefore, untimely. With respect to an infant's claims, the one year and 90-day period within which leave may be sought to file a late notice of claim or to deem a notice of claim timely filed, nunc pro tunc, is tolled by the period of infancy ( see Perry v City of New York, 238 AD2d 326). However, while infancy will automatically toll the applicable one year and 90-day period, it does not compel the granting of a motion for leave to serve a late notice of claim ( see Rowe v Nassau Health Care Corp. , 57 AD3d 961 ).
Petitioner also asserts, in her moving papers, that lead was first found in Chantel's blood on September 9, 1995 and that, on March 25, 1997, a blood lead level constituting lead poisoning was noted.
General Municipal Law § 50-e (5) states in relevant part:
In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an au-theorized representative of the public corporation or its insurance carrier; whether the claimant in servicing 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.
Pursuant to General Municipal Law § 50-e (5), this Court may permit the service of a late notice of claim under certain circumstances. The relevant factors for the Court to consider include, but are not limited to, whether the application provides (1) a reasonable excuse for failing to serve a timely notice of claim, (2) proof that the municipality acquired actual knowledge of the facts constituting the claim within ninety days from its accrual or a reasonable time thereafter, and (3) a showing that the delay would substantially prejudice the municipality in maintaining its defense on the merits( see General Municipal Law 50-e (5); Matter of Padovano v. Massapequa Union Free School Dist. , 31 AD3d 563 ). The presence or absence of any one of the foregoing factors is not determinative as to the application ( see, Matter of Dubowy v City of New York, 305 AD2d at 321,759 NYS2d 325; [2003]) and the absence of a reasonable excuse for a delay in filing is not, standing alone, fatal to the application ( Matter of Ansong v City of New York, 308 AD2d 333, 334). In this case, petitioner served a notice of claim upon the City on June 20, 2000, approximately 21 months after the infant was found to have an elevated lead level in her blood. Following service of the original and untimely notice of claim, another nine years passed before the instant application was made. This delay, like the original delay of 21 months, was not the product of Chantel's infancy ( see Matter of Ali v New York City Health Hosps. Corp. , 61 AD3d 860 , 861). Petitioner has failed to offer a reasonable excuse for the failure to serve a timely notice of claim or to deem her notice of claim as timely served ( see Rowe v Nassau Health Care Corp. , 57 AD3d 961 , 963). Ignorance of the law and of the statutory notice of claim requirement pursuant to General Municipal Law § 50-e does not excuse the failure to file a timely notice of claim ( see Casio v New York City Health and Hosps. Corp. , 14 AD3d 361 ). Contrary to petitioner's suggestion, the fact that Chantel's blood lead level was less than 20 micrograms per deciliter at the time her mother retained an attorney does not mean that a lower level is not actionable ( see Peri v City of New York , 8 Misc 3d 369 , 379). "Even at low levels, lead paint poisoning can harm the central nervous system and cause health problems such as impaired growth, hearing loss and invited attention span" ( Pelaez v Seide , 2 NY3d 186 , 197). There was, therefore, no reason that her attorney could not have served a notice of claim soon after he was retained ( see Simpson v New York City Hous. Auth., 207 AD2d 354). Moreover, given the child's residence in the subject premises, a delay predicated upon the need to determine that the City owned the property is unreasonable. Petitioner also failed to show that the City had actual notice of her claim within the requisite 90-day period or within a reasonable time thereafter ( see Williams v Nassau County Med. Ctr. , 6 NY3d 531 , 537). "The municipality must have notice or knowledge of the specific claim and not general knowledge that a wrong has been committed" ( Matter of Sica v Board of Educ. of City of NY, 226 AD2d 542, 543). Here, although DOH inspected the Glenmore premises in September 1998, it found that only three of 208 areas tested were positive for the presence of lead and, as to those three areas, one was intact and the other two were inaccessible to Chantel. Since there was no evidence of the presence of lead paint in the Glenmore premises in rooms where Chantel had access, DOH had no notice of a hazardous condition. In addition, it had reason to believe (from the comment of Chantel's grandmother to the inspector on October 5, 1998) that the child might have been exposed to possible lead hazards at the Hull premises, which premises was tested and found to have multiple areas with lead paint contamination. Further, petitioner may not rely on a belatedly served notice of claim to establish actual knowledge since it was served without leave of court and was, therefore, a nullity ( see Palagashvili v City of New York , 26 AD3d 481 ). In addition, petitioner failed to establish that the lengthy delay at issue did not prejudice the City's ability to investigate her claim and to maintain a defense on the merits ( see Matter of Gonzalez v City of New York , 60 AD3d 1058 , 1060). According to DOH reports, the minor problems at the Glenmore premises were abated long ago. Therefore, that branch of petitioner's application which seeks an order deeming her notice of claim timely served, nunc pro tunc, is denied. Since petitioner's request to amend the notice of claim seeks to assert a period of exposure even earlier than alleged in the original notice of claim, such relief is, for the same reasons, denied.
Contrary to petitioner's contention, a careful reading of the inspection report indicates that "interior room # 6 second floor landing from apartment entrance" (where the two positive samples were found) was not a room mentioned on the first page of the inspection report in which samples were not taken.
While, as a general proposition, a court entertaining a timely application to serve a late notice of claim will not examine the merits of the underlying cause of action, the motion should be denied when the claim is "patently meritless" ( Caldwell v 302 Convent Ave. Housing Development Fund Corp., 272 AD2d 112). The failure of City employees to timely and properly inspect the Hull premises and to enforce directives to abate the alleged hazardous conditions does not give rise to a special relationship which may serve as a predicate for municipal liability ( see Pelaez v Seide, 2 NY2d 186). Accordingly, that branch of petitioner's application which seeks to assert that the City bears liability for the injuries suffered by Chantel at the Hull premises is similarly denied.
The foregoing constitutes the decision and order of this court.