SAMAD MATIAS v. CITY OF NEW YORK (2005)

The plaintiffs' motion brought by order to show cause for leave to serve a late notice of claim is denied.

Factual and Procedural Background

On October 11, 2002, plaintiff Samad-Matias slipped and fell on water which had allegedly accumulated in one of the buildings which comprise City College of New York at West 138th Street and Convent Avenue, New York, New York. She sustained serious injuries to her left knee and a broken nose.¹  A NOTICE OF CLAIM was served upon the city of new york On decemBer 17, 2002 and again on December 19, 2002 (Ord. to Show Cause, Ex. A).  Also on December 19, 2002, a notice of claim was served on the City University of New York (Ord. to Show Cause, Ex. C).  Subsequently, a notice of claim was served upon the State of New York on November 21, 2003 (Ord. to Show Cause, Ex. B).  By decision and order of the Justice previously assigned to supervise this matter, the claims against City College and City University of New York (CUNY) pending in this Court were permitted to be discontinued because the Court of Claims has exclusive jurisdiction over tort claims asserted against CUNY (Ex. F., Dec. & Order dated April 8, 2004, Motion Seq. 001).   The court severed the balance of the action, and ordered it to proceed.

On November 9, 2004, during the deposition of Sophia Pontoppidan, the witness provided by the City of New York who performs title searches for the Department of Finance and who performed a title search for the City College building at issue, it was revealed that the actual owner of the premises was the Dormitory Authority of the State of New York (Ord. to Show Cause, Ex. D [hereinafter Pontoppidan EBT] at 18).   The witness stated that the search had been “complicated,” because her maps showed that the college is on two lots and that West 138th Street does not actually intersect Convent Avenue (Pontoppidan EBT 10, 17).²  She therefore consulted two deeds dated May 21, 1973 and February 17, 1982, the first between the City of New York and the Dormitory Authority, and the second between the State of New York and the Dormitory Authority, respectively, and was able to determine that the Dormitory Authority had at some point been conveyed the property including the building in which plaintiff fell (Pontoppidan EBT 18).   She was not able to find any leases concerning the property (Pontoppidan EBT 26-27, 29-30).

Analysis

 Plaintiffs move by order to show cause dated December 29, 2004, for leave to file a late notice of claim on the Dormitory Authority of the State of New York (DASNY).  General Municipal Law § 50-e, which applies to tort claims against a public corporation, requires that a notice of claim must be served on the public entity within 90 days after the claim arises (Gen. Mun. L. § 50-e[1] [a] ).   The court may, in its discretion and upon application by the plaintiff, extend the time to serve a notice of claim (Gen. Mun. L. § 50-e[5] ).   Among the factors set forth in the statute that may be considered by the court are whether the defendant acquired actual knowledge of the essential facts constituting the claim within the 90-day period or a reasonable time thereafter, whether the claimant was an infant or was incapacitated, whether in serving the notice the claimant made an “excusable error” concerning the identity of the defendant to be served, and whether the delay prejudiced the defendant's ability to maintain a defense.   Even where the court grants an extension of time to serve the notice of claim, it must be served within the statute of limitations period, i.e., not more than one year and 90 days after the cause of action accrued, unless the statute of limitations was tolled (Gen. Mun. L. § 50-e[5];  see also Chimera v. New York State Dorm. Auth., 273 A.D.2d 802, 709 N.Y.S.2d 302 [4th Dept.2000] [actions against DASNY must be commenced within one year and 90 days of the date of occurrence, citing Public Auth. L. § 1691] ).   In the case at bar, the accident occurred on October 11, 2002.   Therefore, by the Court's calculation, the plaintiffs were required to serve their notice of claim upon DASNY no later than January 9, 2004.

In support of their motion, plaintiffs contend that unless DASNY can establish substantial prejudice, they should be allowed to serve their late notice of claim, citing among others Matter of Gerzel v. City of New York, 117 A.D.2d 549, 499 N.Y.S.2d 60 (1st Dept.1986), which granted the plaintiff an extension of time to file his notice of claim after the 90-day period had elapsed.   In Gerzel, it was “manifest on the record” that the City had acquired actual knowledge of the claim because there was evidence that a sergeant had taken two photographs of the steps, the plaintiff reported the accident to an employee of the premises, an unidentified individual took down the details of the accident including the plaintiff's statement, and the report was filed on the premises which was owned by the City (117 A.D.2d at 550-551, 499 N.Y.S.2d 60).   Plaintiffs argue that in this instance, DASNY also had actual knowledge of the accident.   They note that in addition to the notices of claim served upon the City of New York and the City University of New York within 90 days, an incident report dated October 23, 2002 was prepared for the New York State Department of Labor (Ord. to Show Cause Ex. H), and that seven photographs were attached to the claim served upon the Attorney General's office (Ord. to Show Cause, Ex. I).  They conclude that “DASNY is certainly united in interest with either the City of New York, the State of New York or CUNY, all of whom had timely notice” (Platz Reply ¶ 17).

In Gerzel, only seven months had elapsed between the time of the accident and plaintiff's attempt to serve a notice of claim and the making of his motion to be allowed leave to serve a late notice of claim.   In other words, the motion fell within the parameters of Gen. Mun. L. § 50-e(5), in that the statute of limitations period had not elapsed.   The other decisions cited by plaintiffs also concern motions made prior to the running of the statute of limitations,³ with the exception of Young v. Board of Educ., 1 A.D.3d 194, 767 N.Y.S.2d 214 (1st Dept.2003), which concerned a claim of sexual abuse against a nine-year-old student that occurred in 1998, where the petitioners only moved in September 2001 for leave to serve a late notice of claim.   In Young, petitioners' motion was granted on appeal only to the extent that a hearing was ordered to determine whether the respondents timely acquired actual notice of the alleged facts giving rise to the claim.   The Young court did not explicitly address the tolling effect of infancy on the statute of limitations, but cited Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 265, 434 N.Y.S.2d 138, 414 N.E.2d 639 (1980) and Matter of Potter v. Board of Educ., 43 A.D.2d 248, 350 N.Y.S.2d 671 (1st Dept.1974), both of which discussed infancy and tolling the running of the statute of limitations (Young, at 195, 767 N.Y.S.2d 214).

In opposing the motion, DASNY relies on case law such as Sarjoo v. New York City Health & Hosps. Corp., 309 A.D.2d 34, 39, 763 N.Y.S.2d 306 (1st Dept.2003), lv. denied 1 N.Y.3d 506, 776 N.Y.S.2d 221, 808 N.E.2d 357 (2004), which states, succinctly, “[i]f the application for leave [to serve late notice of claim] is not made prior to the running of the statute of limitations, it may not thereafter be granted,” and Janvier v. New York City Health & Hosps. Corp., 162 A.D.2d 342, 343, 556 N.Y.S.2d 907 (1st Dept.1990), lv. denied 76 N.Y.2d 711, 563 N.Y.S.2d 62, 564 N.E.2d 672 (1990), which states, “[t]he time to file a late notice of claim may not be extended beyond the time limitation for the commencement of an action by a claimant against a public corporation (General Municipal Law § 50-e[5] ).”   DASNY also suggests, conveniently overlooking the deposition testimony of the City's witness concerning the complexity of determining ownership of the property, that plaintiffs merely needed to look in the public records of the New York City Department of Buildings for block number 1957 and lots 200 and 105, and they would have discovered that DASNY was the owner of the property (Tarsitano Aff. in Opp. ¶ 10).   Here, unlike the attorney in Seif v. City of New York, 218 A.D.2d 595, 596, 630 N.Y.S.2d 742 (1st Dept.1995), who the court concluded could “easily” have ascertained the proper owner of the building, it is apparent that the public records concerning this particular CUNY building, are far from clear.

 The doctrine of equitable estoppel will be invoked only under exceptional circumstances (Borges v. Sallis, 291 A.D.2d 271, 737 N.Y.S.2d 284 [1st Dept.2002] ), none of which are present here.   Plaintiffs argue, for instance, that they were never put on notice by defendants that they had failed to sue the proper entity.   However, defendants had no duty to inform plaintiffs, either in an affirmative defense or by any other means, that they had failed to serve the proper party (see, Kroin v. City of New York, 210 A.D.2d 95, 620 N.Y.S.2d 339 [1st Dept.1994] ).   Plaintiffs also argue that the City of New York failed to comply with the April 21, 2004 preliminary conference order, or subsequent demands and orders, to produce documents including any leases, which would have potentially clarified the issue of ownership.   This argument fails because the preliminary conference took place after the statute of limitations had run, and plaintiffs' demands were already time-barred.   Although plaintiffs cite several decisions in which courts have held that errors concerning the identity of the correct governmental entity to be sued can be excused provided that a prompt application for relief is made after discovery of the error, the cases all concern situations falling within the statute of limitations period (see, e.g., Matter of Gherardi v. City of New York, 294 A.D.2d 101, 740 N.Y.S.2d 865 [1st Dept. 2002];  Oliveira v. Dormitory Auth. of State of New York, 262 A.D.2d 59, 690 N.Y.S.2d 439 [1st Dept.1999];  Matter of Harris v. Dormitory Auth. of State of New York, 168 A.D.2d 560, 561, 562 N.Y.S.2d 781 [2d Dept.1990];  Farrell v. City of New York, 191 A.D.2d 698, 595 N.Y.S.2d 531 [2d Dept. 1993] ).   While the Court is not unsympathetic to the concern that delays in discovery by one or more defendants can lead to a claim against an as-of-then unknown proper defendant becoming stale, here the extant record would not support a finding that but for the defendants' delay in providing discovery, it would have been able to timely learn of the error and sue the proper party.   After purchasing an index number and filing its complaint in November 2003, the plaintiffs took no action to request judicial intervention.   Had they promptly done so, the case scheduling order or preliminary conference order might well have issued and a compliance conference been scheduled within the time permitted by the statute of limitations.   The first request for judicial intervention in this action was filed by the defendant State of New York, in March 2004 in connection with its motion to dismiss.   This resulted in the previously noted April 8, 2004 order discontinuing the action as to the state, and an April 21, 2004 case scheduling order.   In short, given the plaintiffs' delay in seeking judicial intervention to obtain discovery, even if there were not the statute of limitations problem, it cannot be said that the equities preponderate in favor of plaintiffs.

Plaintiffs' attempts to argue that DASNY must have had timely notification of the accident and that it had actual knowledge of the facts constituting plaintiffs' claim, are not persuasive.   Notice to the City or to CUNY cannot be imputed to DASNY (see, Hobgood v. New York City Hous. Auth., 253 A.D.2d 555, 677 N.Y.S.2d 176 [2d Dept.1998] ).   However, the statement by DASNY's attorney that DASNY never knew of plaintiff's accident (Tarsitano Aff. ¶ 12) carries little force, given that it is not a statement made by an individual with first-hand knowledge (cf., Oliveira v. Dormitory Auth. of the State of New York, 262 A.D.2d 59, 690 N.Y.S.2d 439 [holding that the defendant had actual knowledge of the incident complained of based on its failure to deny receipt of a copy of the accident report] ).

DASNY contends that it would be severely prejudiced if it were brought into the litigation at this late date, because the presence of water on the floor was transitory and no meaningful investigation could be conducted more than two years after the accident.   Plaintiffs allege that the condition was not transitory, but also cite Connaughton v. New York City Tr. Auth., 301 A.D.2d 389, 753 N.Y.S.2d 80 (1st Dept.2003), which noted that an accumulation of water and ice on the stairs in question was either transient such that the respondent was unlikely to have been able to timely investigate even if notice had been promptly served or, if caused by a clogged drain that the respondent had a duty to maintain, should have generated inspection and maintenance records which could be produced.   Although Connaughton might be persuasive in other situations, here, where plaintiffs have not established that DASNY should be estopped from claiming untimely notice, the Court is without discretion pursuant to General Municipal Law § 50-e(5), to permit them to file a late notice of claim.   Their motion for leave to file a late notice of claim must be denied.   It is therefore

ORDERED that plaintiffs' motion for leave to file a late notice of claim is denied.

This constitutes the decision and order of the court.

FOOTNOTES

1.   Her husband, co-plaintiff Mohammad, claims loss of services, support, and consortium.

2.   This is due to the existence of the Adolph Lowisohn Plaza (Pontoppidan EBT 17).

3.   See, Ansong v. City of New York, 308 A.D.2d 333, 764 N.Y.S.2d 182 (1st Dept.2003);  Heiman v. City of New York, 85 A.D.2d 25, 447 N.Y.S.2d 158 (1st Dept.1982);  Reisse v. County of Nassau, 141 A.D.2d 649, 529 N.Y.S.2d 371 (2d Dept.1988), Matter of Buono v. City of New York, 133 A.D.2d 685, 519 N.Y.S.2d 855 (2d Dept.1987);  Rechenberger v. Nassau County Med. Ctr., 112 A.D.2d 150, 490 N.Y.S.2d 838 (2d Dept.1985);  Ansaldo v. City of New York, 92 A.D.2d 557, 459 N.Y.S.2d 302 (2d Dept.1983);  Weinzel v. County of Suffolk, 92 A.D.2d 545, 459 N.Y.S.2d 112 (2d Dept.1983);  Dickey v. County of Nassau, 65 A.D.2d 780, 410 N.Y.S.2d 333 (2d Dept.1978).

PAUL G. FEINMAN, J.