Opinion
No. 2022-05105 Index No. 55183/22
09-11-2024
Tiffany Stewart, appellant, v. City of Mount Vernon, respondent
Umoh Law Firm, PLLC, New York, NY (Uwem Umoh of counsel), for appellant. Brian G. Johnson, Corporation Counsel, Mount Vernon, NY (Anthony Odorisi of counsel), for respondent.
Umoh Law Firm, PLLC, New York, NY (Uwem Umoh of counsel), for appellant.
Brian G. Johnson, Corporation Counsel, Mount Vernon, NY (Anthony Odorisi of counsel), for respondent.
BETSY BARROS, J.P. PAUL WOOTEN BARRY E. WARHIT LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for employment discrimination on the basis of gender in violation of the New York State Human Rights Law (Executive Law §§ 291; 296), the plaintiff appeals from an order of the Supreme Court, Westchester County (David S. Zuckerman, J.), dated June 7, 2022. The order granted the defendant's motion, in effect, pursuant to CPLR 3211(a) to dismiss the amended complaint and denied the plaintiff's cross-motion for leave to serve a late notice of claim.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action against the defendant, inter alia, to recover damages for employment discrimination in violation of the New York State Human Rights Law (Executive Law §§ 291; 296). The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint for failure to serve a timely notice of claim pursuant to Charter of the City of Mount Vernon (hereinafter City Charter) § 265 or, alternatively, for failure to state a cause of action. Subsequently, the plaintiff filed an amended complaint as of right, alleging that the City of Mount Vernon Fire Department's policies and practices relating to hiring new firefighters had a disparate impact on female applicants in violation of the New York State Human Rights Law, and cross-moved pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim. The defendant opposed the plaintiff's cross-motion and, in further support of its motion to dismiss, the defendant contended, inter alia, that the plaintiff's failure to serve a timely notice of claim warranted dismissal of the amended complaint. In an order dated June 7, 2022, the Supreme Court granted the defendant's motion and denied the plaintiff's cross-motion. The defendant appeals.
Initially, we note that since the defendant, in effect, elected to apply its motion pursuant to CPLR 3211(a) to dismiss to the amended complaint, which superseded the original complaint, the Supreme Court properly considered the motion as directed against the amended complaint (see Tueme v Lezma, 217 A.D.3d 715, 716; Estate of Feenin v Bombace Wine & Spirits, Inc., 188 A.D.3d 1001, 1003).
Under City Charter § 265, a party must serve a written notice of claim in compliance with General Municipal Law § 50-e as a condition precedent to commencing "a civil action for damages or injuries to person or property or invasion of personal or property rights of any name or nature whatsoever, whether casual or continuing, arising at law or equity" against the defendant. General Municipal Law § 50-e(3)(a) requires that a party deliver "a copy [of the notice of claim] personally, or by registered or certified mail, to the person designated by law as one to whom a summons in an action in the supreme court issued against such corporation may be delivered, or to an attorney regularly engaged in representing such public corporation." General Municipal Law § 50-e(1) provides, in pertinent part, that a notice of claim must be served "within ninety days after the claim arises." The requirement of City Charter § 265 to serve a notice of claim as a condition precedent to a "civil action... of any name or nature whatsoever,... arising at law or in equity," applies to the plaintiff's causes of action pursuant to the New York State Human Rights Law asserted in the amended complaint (see Fair v City of Mount Vernon, 210 A.D.3d 868, 869).
Contrary to the plaintiff's contentions, she was not exempted from the notice of claim requirement of City Charter § 265 under the public interest exception (see Seifullah v City of New York, 161 A.D.3d 1206, 1207; Matter of Fotopoulos v Board of Fire Commrs. of the Hicksville Fire Dist., 161 A.D.3d 733, 734). The plaintiff primarily seeks relief for alleged violations of her personal rights in the form of money damages for lost wages, in addition to compensatory and punitive damages (see Mills v County of Monroe, 59 N.Y.2d 307, 312; Mirro v City of New York, 159 A.D.3d 964, 967).
Pursuant to General Municipal Law § 50-e(5), the Supreme Court has discretion to grant leave to serve a late notice of claim under certain circumstances. In determining whether to grant leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether (1) a public corporation had actual knowledge of the essential facts constituting the plaintiff's specific claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would not substantially prejudice the public corporation in its defense on the merits (see Lobos v City of New York, 219 A.D.3d 720, 722; Matter of Brown v City of New York, 202 A.D.3d 783, 783). "'While the presence or absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance'" (Lobos v City of New York, 219 A.D.3d at 721, quoting Matter of Mohamed v New York City, 139 A.D.3d 858, 858).
Here, the plaintiff failed to demonstrate that the defendant had actual knowledge of the essential facts constituting the plaintiff's claim within 90 days after the claim arose or a reasonable time thereafter (see Durand v MV Transp., Inc., 186 A.D.3d 564, 566; Matter of D.S. v South Huntington Union Free Sch. Dist., 176 A.D.3d 1075, 1077) or to provide a reasonable excuse for not serving a timely notice of claim (see Matter of Zelin v Blind Brook-Rye Union Free Sch. Dist., 164 A.D.3d 1352, 1353; Matter of Cuccia v Metropolitan Transp. Auth., 150 A.D.3d 849, 850). Further, the plaintiff failed to meet her initial burden of coming forward with "some evidence or plausible argument supporting a finding that the [defendant] was not substantially prejudiced by the delay" (Lobos v City of New York, 219 A.D.3d at 722 [internal quotation marks omitted]; see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 467).
Accordingly, the Supreme Court properly granted the defendant's motion, in effect, pursuant to CPLR 3211(a) to dismiss the amended complaint and denied the plaintiff's cross-motion pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim.
The plaintiff's remaining contentions are without merit.
BARROS, J.P., WOOTEN, WARHIT, and VENTURA, JJ., concur.