CATTERSON v. SUFFOLK COUNTY DEPARTMENT OF HEALTH SERVICES (2008)

In an action, inter alia, to recover damages for personal injuries, the defendants Suffolk County Department of Health Services, Suffolk County Correctional Facility, and Suffolk County Sheriff's Department appeal from an order of the Supreme Court, Suffolk County (Baisley, J.), dated April 13, 2007, which granted the plaintiff's motion for leave to serve a late notice of claim upon the County of Suffolk and denied their cross motion to dismiss, as time-barred, the fourth, fifth, sixth, seventh, and tenth causes of action and so much of the first, second, third, and ninth causes of action as asserted claims under state law.

ORDERED that the order is modified, on the law, (1) by adding thereto a provision limiting the late notice of claim to claims accruing on or after November 30, 2005, insofar as premised upon conduct by the defendant Suffolk County Sheriff's Department and to claims accruing on or after August 30, 2005, insofar as premised upon conduct by the defendants Suffolk County Department of Health Services and Suffolk County Correctional Facility, and (2) by deleting the provision thereof denying those branches of the cross motion of the defendants Suffolk County Department of Health Services, Suffolk County Correctional Facility, and Suffolk County Sheriff's Department which were to dismiss, as time-barred, the fourth, fifth, sixth, seventh, and tenth causes of action and so much of the first, second, third, and ninth causes of action as asserted claims under state law premised upon acts committed by the defendant Suffolk County Sheriff's Department prior to November 30, 2005, and premised upon acts committed by the defendants Suffolk County Department of Health Services and Suffolk County Correctional Facility prior to August 30, 2005, and substituting therefor a provision granting those branches of the cross motion;  as so modified, the order is affirmed, without costs or disbursements.

On February 9, 2006, Gary Feinberg, a physician's assistant employed by the defendant Suffolk County Department of Health Services, was arrested for fondling female prisoners under his care at the defendant Suffolk County Correctional Facility during a seven-month period in 2005.  On November 30, 2006, one of those inmates, the plaintiff Marie Catterson, commenced the instant action against the defendants Suffolk County Department of Health Services, Suffolk County Correctional Facility, and Suffolk County Sheriff's Department (hereinafter the County defendants), to recover damages for personal injuries arising from, inter alia, negligent hiring and negligent supervision and against the defendant Estate of Gary Feinberg, based on sexual abuse incidents committed against her between January 2005 and December 2005.  In March 2006, Feinberg apparently had committed suicide.

Simultaneously with the filing of the summons and complaint on November 30, 2006, the plaintiff moved for leave to serve a late notice of claim upon the County of Suffolk.  In opposition to the motion, the County defendants cross-moved to dismiss, as time-barred, the state common-law tort causes of action insofar as asserted against them.  The Supreme Court granted the plaintiff leave to serve the notice of claim unconditionally, and denied the County defendants' cross motion.  We modify.

In order to commence a tort action against a municipality, a claimant must serve a notice of claim within 90 days of the alleged injury (see General Municipal Law § 50–e[1][a];  Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 535, 814 N.Y.S.2d 580, 847 N.E.2d 1154;  Forrest v. Berlin Cent. School Dist., 29 A.D.3d 1230, 815 N.Y.S.2d 774).  Pursuant to General Municipal Law § 50–e (5), the court may, in its discretion, extend the time to serve a notice of claim (see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 851 N.Y.S.2d 218;  Matter of Lodati v. City of New York, 303 A.D.2d 406, 755 N.Y.S.2d 853), after considering “ ‘whether the movant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense’ ” (Jordan v. City of New York, 41 A.D.3d 658, 659, 838 N.Y.S.2d 624, quoting Matter of Hicks v. City of New York, 8 A.D.3d 566, 778 N.Y.S.2d 725;  see Matter of Valestil v. City of New York, 295 A.D.2d 619, 744 N.Y.S.2d 701;  see also General Municipal Law § 50–e [5] ).

 Neither the presence nor the absence of any one factor is determinative (see Matter of Dell'Italia v. Long Is. R.R. Corp., 31 A.D.3d 758, 759, 820 N.Y.S.2d 81;  Gibbs v. City of New York, 22 A.D.3d 717, 719, 804 N.Y.S.2d 393), and even the absence of a reasonable excuse is not necessarily fatal (see Matter of March v. Town of Wappinger, 29 A.D.3d 998, 816 N.Y.S.2d 534;  Matter of Alvarenga v. Finlay, 225 A.D.2d 617, 639 N.Y.S.2d 115).  However, courts have no power to authorize a late notice of claim for claims accruing prior to the one year and 90 day statutory period for an individual incident (see General Municipal Law § 50–i [1][c];  Pierson v. City of New York, 56 N.Y.2d 950, 954–956, 453 N.Y.S.2d 615, 439 N.E.2d 331;  Maxwell v. City of New York, 29 A.D.3d 540, 541, 815 N.Y.S.2d 133;  Small v. New York City Tr. Auth., 14 A.D.3d 690, 691, 789 N.Y.S.2d 229).

 Under the circumstances of this case, the Supreme Court providently exercised its discretion in concluding that the County defendants timely acquired actual knowledge of the essential facts underlying the plaintiff's claim and would not be prejudiced by late service (see Jordan v. City of New York, 41 A.D.3d at 659, 838 N.Y.S.2d 624;  Matter of Andrew T.B. v. Brewster Cent. School Dist., 18 A.D.3d 745, 748, 795 N.Y.S.2d 718;  Cruz v. City of Yonkers, 268 A.D.2d 501, 702 N.Y.S.2d 356;  Matter of Hunt v. County of Madison, 261 A.D.2d 695, 696, 690 N.Y.S.2d 154).  Within two months of the last incident of sexual abuse, several inmates, including the plaintiff, reported the alleged sexual abuse to the County defendants, who immediately conducted an investigation culminating in the filing of criminal charges against Feinberg (see Matter of Besedina v. New York City Tr. Auth., 47 A.D.3d 924, 850 N.Y.S.2d 199;  Matter of Hunt v. County of Madison, 261 A.D.2d at 696, 690 N.Y.S.2d 154).  In light of their investigation, the County defendants' conclusory assertions of prejudice, based solely on the plaintiff's delay in serving the notice of claim, are insufficient to warrant the denial of her motion for leave to serve a late notice of claim (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d at 539, 814 N.Y.S.2d 580, 847 N.E.2d 1154;  Gibbs v. City of New York, 22 A.D.3d at 720, 804 N.Y.S.2d 393;  Matter of Andrew T.B. v. Brewster Cent. School Dist., 18 A.D.3d at 748, 795 N.Y.S.2d 718).

While the plaintiff failed to support her motion with a statement from either her treating psychiatrist or psychologist or other documentary evidence, she did provide some explanation for the delay, citing her homelessness, incarceration, and resultant depression.  In any event, the absence of a reasonable excuse for the delay does not bar the court from granting leave to serve a late notice of claim under the extant circumstances (see Matter of Rivera–Guallpa v. County of Nassau, 40 A.D.3d 1001, 1002, 836 N.Y.S.2d 288, lv. denied 9 N.Y.3d 816, 849 N.Y.S.2d 32, 879 N.E.2d 172;  Matter of Vasquez v. City of Newburgh, 35 A.D.3d 621, 623–624, 826 N.Y.S.2d 648;  Gibbs v. City of New York, 22 A.D.3d at 720, 804 N.Y.S.2d 393).

Although the Supreme Court providently granted the plaintiff's motion for leave to serve a late notice of claim, it should have limited the late notice of claim only to those claims not barred by the applicable statute of limitations (see CPLR 215[1];  General Municipal Law § 50–i).

The Supreme Court erred in denying the County defendants' cross motion to the extent it sought to dismiss the state law causes of action insofar as premised upon acts committed by the defendants Suffolk County Department of Health Services and Suffolk County Correctional Facility prior to August 30, 2005, and state law causes of action premised upon acts committed by the defendant Suffolk County Sheriff's Department prior to November 30, 2005, since any of the plaintiff's claims arising from acts constituting state common-law torts that occurred prior thereto are time-barred (see CPLR 215[1];  General Municipal Law § 50–i[1][c];  Grey v. New York City Health & Hosps. Corp., 305 A.D.2d 458, 759 N.Y.S.2d 334;  Williams v. Howe, 297 A.D.2d 671, 747 N.Y.S.2d 251;  Pinna v. Larys, 284 A.D.2d 315, 316, 725 N.Y.S.2d 571).