ELTER v. The City of New York, Defendant. (1999)

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered December 23, 1997, which denied plaintiffs' motion to serve a late notice of claim, unanimously modified, on the law and the facts, to the extent of directing defendant-respondent New York City Housing Authority to accept the original notice of claim filed September 24, 1996 and, except as so modified, affirmed, without costs.

Defendant New York City Housing Authority concedes that plaintiffs filed their original notice of claim on September 24, 1996.   The notice alleges that, on June 27, 1996, as the result of a pavement defect on premises maintained by defendant-respondent, the infant plaintiff sustained severe but unspecified personal injuries.   The site of the accident is identified only as “25 feet from the entrance of 1755 Bruckner Blvd., Bronx, New York.” Thereafter, defendant City of New York held a General Municipal Law § 50-h hearing.   Defendant-respondent Housing Authority rejected the notice of claim by letter dated October 1, 1996.   By order to show cause dated October 20, 1997, plaintiffs sought leave to serve a late notice of claim (denominated an amended notice of claim) setting forth the location of the accident with greater specificity.   Defendant City did not appear in opposition to the motion.

 This Court regards the original notice, as supplemented by 16 attached photographs of the pavement defect and the surrounding area, to be adequate.   Seven of the photographs depict the precise location in front of the building entrance from a variety of distances and perspectives, and four of the seven include arrows pointing to the defect in the pavement.   Even the crude reproductions in the record reveal enough detail to permit the location of the defect to be ascertained in relation to the entrance to the building.   It is simply incredible that any person with reasonable eyesight would be unable to locate the defect with the assistance of these photographs.   As we stated in Lord v. New York City Housing Authority, 184 A.D.2d 406, 407, 585 N.Y.S.2d 49, “the municipal defendant, with a modicum of effort, could have determined the location of the defective condition alleged to have caused injury to the plaintiff (Basile v. City of New York, 156 A.D.2d 239, 548 N.Y.S.2d 499;  Maiello v. City of New York, 103 Misc.2d 1064, 427 N.Y.S.2d 381, affd. 113 Misc.2d 122, 450 N.Y.S.2d 932).”   Whether plaintiffs are entitled to the benefit of the toll of infancy (General Municipal Law §§ 50-e [5];  50-i[1][c];  Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 434 N.Y.S.2d 138, 414 N.E.2d 639) to render timely their motion to serve a late notice is therefore irrelevant.

 Supreme Court noted several defects in the notice, including an inadequate description of the injuries alleged to have been sustained (see, Baez v. New York City Housing Authority, 182 A.D.2d 554, 583 N.Y.S.2d 1).  However, defendant-respondent alleged only the lack of specificity as to the location of the defect in opposition to the motion and the failure to list the address of the infant plaintiff.   A party may not “argue on appeal a theory never presented to the court of original jurisdiction” (Recovery Consultants v. Shih-Hsieh, 141 A.D.2d 272, 276, 534 N.Y.S.2d 374, citing Huston v. County of Chenango, 253 App.Div. 56, 60-61, 1 N.Y.S.2d 252, affd. 278 N.Y. 646, 16 N.E.2d 301).   As the residence of an infant is presumed to be that of the parent or guardian (Quiala v. Laufer, 180 A.D.2d 31, 34, 584 N.Y.S.2d 786, appeal dismissed 80 N.Y.2d 924, 589 N.Y.S.2d 311, 602 N.E.2d 1127) and defendant-respondent has come forward with no evidence to rebut the presumption (Catlin v. Sobol, 77 N.Y.2d 552, 559, 569 N.Y.S.2d 353, 571 N.E.2d 661), the latter argument is without merit.

MEMORANDUM DECISION.