Opinion
0105834/2007.
October 24, 2007.
DECISION/ORDER
The following documents were considered in reviewing defendants' motion for an order pursuant to CPLR 3211 dismissing the complaint:
Papers Numbered Notice of Motion, Affirmation Affidavit 1 (Exhibits A-D) 2 Reply Affirmation 3
Notice of Cross-Motion, Affirmation AffidavitInfant plaintiff Jayden James was allegedly burned on the back of his right leg when it came in to contact with an exposed pipe in his bedroom. Defendant NYCHA owned and operated the building. NYCHA issued a Notice of Hearing pursuant to GML § 50-h to plaintiffs' counsel (Jacoby Meyers, LLP) on May 11, 2006, noticing the hearing for June 26, 2006. According to Richard Denham, a paralegal with Herzfeld Rubin, NYCHA's counsel, he contacted Jacoby Meyers on June 23, 2006, and was told that new counsel (the Law Offices of Held Held) would be representing plaintiffs. Denham contacted Held Held and spoke with a Joanne who told him that Held Held was not taking the case. Denham then asked Joanne to "have the attorneys who would be taking the case or the pro-se claimants contact me to confirm the hearing." See NYCHA's Exhibit D.
Without any factual support, NYCHA claims that "[a]t plaintiff's request, the statutory hearing that was scheduled for June 26, 2006, was adjourned (see, Exhibit D)." See Affirmation in Support of Motion at ¶ 7. NYCHA's counsel went on to affirm that "[d]espite the efforts of NYCHA to re-schedule the statutory hearing (see, Exhibit D), plaintiff did not respond. Plaintiffs never sought to arrange for their statutorily-required hearing." Id.
According to plaintiff Ashley Sierra (Jayden's mother), she initially retained Jacoby Meyers and signed many forms. At some point thereafter, she was told by Jacoby Meyers that her case was turned over to Held Held. Eventually, after having no contact with Held Held, she received a letter from Held Held advising her that it would no longer represent her in the lawsuit. Some time later, she retained present counsel, who commenced the instant action after receiving no responses to his letters to Jacoby Meyers and Held Held to avoid the expiration of the one year and ninety days from date of occurrence.
NYCHA now moves to dismiss the complaint based on plaintiffs' failure to comply with GML § 50-h, and plaintiffs cross-move for an order allowing plaintiffs to testify at a 50-h hearing nunc pro tunc. Although generally, a plaintiff who has not complied with GML § 50-h(1) is precluded from commencing an action against a municipality, Arcila v. Incorporated Village of Freeport, 231 A.D.2d 660 (2nd Dept. 1996), compliance with section 50-h (1) has been excused in exceptional circumstances. see, e.g., Twitty v City of New York, 195 AD2d 354 (1st Dept. 1993) (claimant was extremely ill and disabled). Here, the Court finds exceptional circumstances. There is absolutely no evidence in the record that plaintiffs even knew that a 50-h hearing had been scheduled. Rather, her case was bounced from one law firm to another without her knowledge. And NYCHA's assertions to the contrary, there is no indication that plaintiffs or their counsel requested an adjournment. Rather, what is clear is that a paralegal for the firm representing NYCHA asked a person named Joanne at Held Held to inform plaintiffs' new counsel or plaintiff Sierra to call NYCHA to confirm the hearing date. Whether Joanne actually took it upon herself to do so, however, is not reflected in the record. Under these circumstances, and given no prejudice to NYCHA, plaintiffs are granted leave to testify at a 50-h hearing to be scheduled within 30 days of this order. Accordingly, it is
ORDERED that defendant's motion to dismiss the complaint is denied; and it is further
ORDERED that plaintiffs' cross-motion for an order allowing plaintiffs to testify at a 50-h hearing nunc pro tunc is granted to the extent that a 50-h hearing be held within 30 days of this order; and it is further
ORDERED that a Preliminary Conference is scheduled for December 13, 2007 in Part 61 at 9:30 a.m.
This constitutes the Decision and Order of the Court.