Richard Keeney, et al., E Plaintiffs–Appellants, v. New York City Housing Authority, Defendant–Respondent.

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

Richard Keeney, et al., E Plaintiffs–Appellants, v. New York City Housing Authority, Defendant–Respondent.

8198

Decided: January 24, 2019

Sweeny, J.P., Tom, Kahn, Oing, Singh, JJ. Raneri, Light & O'Dell, PLLC, White Plains (Kevin D. O'Dell of counsel), for appellants.

_

Order, Supreme Court, Bronx County (Llinét M. Rosado, J.), entered October 12, 2017, which granted defendant's motion to dismiss the complaint and denied plaintiffs' cross motion to deem the notice of claim timely served nunc pro tunc, unanimously affirmed, without costs.

The court properly granted defendant's motion to dismiss and denied plaintiffs' cross motion to deem the notice of claim timely served nunc pro tunc because plaintiffs failed to show that defendant received a notice of claim by facsimile within 90 days of the accident.

Plaintiff's submission of an affidavit by an associate of plaintiffs' former counsel, who asserted that he sent the notice of claim to defendant on October 20, 2011 by facsimile, was insufficient to meet plaintiffs' burden to show that defendant received the notice of claim on that date, because he failed to disclose the telephone number to which he faxed the notice of claim, submit a copy of the facsimile he sent to defendant or identify the individual he spoke with in order to confirm that the notice was actually received by defendant on that date.  Even if his affidavit was entitled to a general presumption of regularity (see CPLR 4520), that presumption was overcome by the affidavits defendant submitted in opposition to the cross motion, which plaintiffs failed to rebut with any additional evidence showing that service of the notice of claim was made by facsimile on October 20, 2011 (see De Zego v Donald F. Bruhn, M.D., P.C., 67 N.Y.2d 875, 877 [1986] ).

The court properly denied plaintiffs' cross motion to the extent that it alternatively sought to have the notice of claim, untimely served by certified mail on October 27, 2011, deemed timely served nunc pro tunc.  Even if defendant had received the reports and witness statements from nonparty the New York City Police Department during the statutory period, knowledge of the accident does not constitute notice to defendant of plaintiffs' intention to file a civil suit based on a negligence claim (see Zapata v. New York City Hous. Auth., 115 AD3d 606 [1st Dept 2014];  Lopez v. New York City Hous. Auth., 193 A.D.2d 473 [1st Dept 1993] ).

Contrary to plaintiffs' contention, there was no basis to equitably estop defendant from seeking dismissal of the complaint simply because it engaged in litigation, including conducting a 50–h hearing, and did not raise plaintiffs' failure to properly serve a timely notice of claim as an affirmative defense in its answer (see Lozano v. New York City Hous. Auth., 153 AD3d 1173 [1st Dept 2017] ).  Plaintiffs' failure to petition for leave to serve a late notice of claim within one year and 90 days of the date that their claims accrued deprived the court of the authority to grant such relief, and plaintiffs did not assert that the statutory conditions for extending the time to file a late notice were present in this case (see Matter of Carpenter v. New York City Hous. Auth., 146 AD3d 674 [1st Dept 2017], lv denied 29 NY3d 911 [2017];  Adkins v. City of New York, 51 A.D.2d 944 [1st Dept 1976], affd 43 N.Y.2d 346 [1977] ).

_

CLERK