QUARTO v. CITY OF NEW YORK

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Supreme Court, Kings County, New York.

Debra QUARTO, Plaintiff v. The CITY OF NEW YORK and the New York City Department of Education, Defendants.

Decided: May 30, 2008

Minchew, Santner and Brenner, LLP, by Jamie M. Minchew, Esq., of counsel, for plaintiff. Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Kathrine Margaret Borowiecki, Esq. of counsel, for defendants.

Plaintiff Debra Quarto (Quarto) moves pursuant to General Municipal Law § 50-e, for an order granting her leave to file a late notice of claim against the City of New York and the New York City Department of Education (collectively the “City”) for claims of negligence.

The instant case arises out of a trip and fall on a sidewalk outside of a school building, I.S. 303 located at 501 West Avenue, Brooklyn, New York, on November 13, 2006.   The plaintiff fractured her right ankle after tripping on a raised portion of the sidewalk.   On November 14, 2006, and on January 21, 2006, workers' compensation reports were filed by Quarto with the school.   Plaintiff indicates that her employer advised her that the way for her to pursue a remedy for her injuries was through a workers' compensation claim and that thereafter the employer chose to oppose that claim.

Plaintiff was required to file a timely Notice of Claim pursuant to General Municipal Law (GML) § 50-e arising from the November 13, 2006, accident by February 11, 2007.   The plaintiff filed a late Notice of Claim without leave of court on June 19, 2007, approximately four (4) months after the time to file a Notice of Claim had expired.   The instant motion was made on February 7, 2008.

 Service of a Notice of Claim is a condition precedent to the commencement of a tort action against the municipality.  (Clayton Industries, Inc. v. City of Newburgh, 17 A.D.3d 308, 792 N.Y.S.2d 587 [2d Dept. 2005].)   Plaintiff's filing of a late Notice of Claim was served without leave of court and outside of the ninety (90) day requirement under GML 50-e.  (Small v. New York City Transit Authority, 14 A.D.3d 690, 789 N.Y.S.2d 229 [2d Dept. 2005], Santiago v. City of New York, 294 A.D.2d 483, 742 N.Y.S.2d 566 [2d Dept. 2002], Friedman v. City of New York, 19 A.D.3d 542, 796 N.Y.S.2d 529 [2d Dept. 2005].) The failure to serve the notice within ninety (90) days makes it a nullity.  (Laroc v. City of New York, 46 A.D.3d 760, 847 N.Y.S.2d 677 [2d Dept. 2007], Matter of White v. New York City Housing Authority, 38 A.D.3d 675, 831 N.Y.S.2d 515 [2d Dept. 2007], Maxwell v. City of New York, 29 A.D.3d 540, 815 N.Y.S.2d 133 [2d Dept. 2006].) The law permits service of a late Notice of Claim by leave of court under certain circumstances;  the plaintiff now moves for leave to serve a late Notice within one (1) year and eighty-six (86) days of the date that the claims accrued.   Therefore, the Court can consider the application because the instant motion is made within the one year (1) and ninety (90) day statute of limitations.

 A Court in its discretion may extend the time under GML § 50-e, to serve a Notice of Claim.   In exercising its discretion, the Court must focus on whether the movant has demonstrated a reasonable excuse for its failure to file a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within ninety (90) days from its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits.  (Acosta v. City of New York, 39 A.D.3d 629, 834 N.Y.S.2d 267 [2nd Dept., 2007], Rabanar v. City of Yonkers, 290 A.D.2d 428, 736 N.Y.S.2d 93 [2nd Dept., 2002], Christoforatos v. City of New York, 285 A.D.2d 622, 728 N.Y.S.2d 675 [2nd Dept., 2001], Hobgood v. New York City Housing Authority, 253 A.D.2d 555, 677 N.Y.S.2d 176 [2nd Dept., 1998] ).

 Plaintiff fails to demonstrate any facts which could be considered as a reasonable excuse for delay in filing the Notice of Claim.   Plaintiff alleges that she was unaware that she was required to file a Notice of Claim within the 90 day period and that she remained partially disabled because of her condition.   Notwithstanding the plaintiffs reliance on her employers recommendation that she proceed to recover damages for her injuries through a workers compensation claim, ignorance of the need to file a late Notice of Claim is not a reasonable excuse, (James v. City of New York, 242 A.D.2d 630, 662 N.Y.S.2d 542 [2d Dept. 1997] ), nor is the plaintiffs disability (Ribeiro v. Town of North Hempstead, 200 A.D.2d 730, 607 N.Y.S.2d 108 [2d Dept. 1994].)   Plaintiff also argues that she has a reasonable excuse primarily because she filed a workers' compensation claim and did not have a reason to contact an attorney.   However, the courts have continually held that relying on the filing of a workers' compensation claim is not a reasonable excuse for the failure to file a timely Notice of Claim.  (Matter of Buddenhagen v. Town of Brookhaven, 212 A.D.2d 605, 622 N.Y.S.2d 547 [2d Dept. 1995], Matter of Brito v. City of New York, 237 A.D.2d 286, 654 N.Y.S.2d 168 [2d Dept. 1997], O'Dowd v. City of New York, 226 A.D.2d 642, 641 N.Y.S.2d 541 [2d Dept. 1996], Matter of Ealey v. City of New York, 204 A.D.2d 720, 612 N.Y.S.2d 445 [2d Dept. 1994] ).

 In determining whether to permit the filing of a late Notice of Claim, the presence or absence of any one factor under GML § 50-e is not determinative, and the absence of a reasonable excuse for the delay is not necessarily fatal.  (Nardi v. County of Nassau, 18 A.D.3d 520, 795 N.Y.S.2d 300 [2nd Dept., 2005], Chattergoon v. New York City Housing Authority, 197 A.D.2d 397, 602 N.Y.S.2d 381 [1st Dept., 1993].)   Consequently, the Court will consider whether the City received actual notice of the facts constituting the claims.

 Actual knowledge of the essential facts of the claim must have been acquired by the City, not just knowledge of the occurrence.  (Matter of Felice v. Eastport/South Manor, 50 A.D.3d 138, 851 N.Y.S.2d 218 [2d Dept. 2008], Chattergoon v. New York City Housing Authority, 197 A.D.2d 397, 602 N.Y.S.2d 381 [1st Dept. 1993], Casias v. City of New York, 39 A.D.3d 681, 833 N.Y.S.2d 662 [2d Dept. 2007] ).

In the cases of Matter of Buddenhagen v. Town of Brookhaven, 212 A.D.2d 605, 622 N.Y.S.2d 547 [2d Dept. 1995], Matter of Brito v. City of New York, 237 A.D.2d 286, 654 N.Y.S.2d 168 [2d Dept. 1997], O'Dowd v. City of New York, 226 A.D.2d 642, 641 N.Y.S.2d 541 [2d Dept. 1996], Matter of Ealey v. City of New York, 204 A.D.2d 720, 612 N.Y.S.2d 445 [2d Dept. 1994] (supra), where the court found that the filing of the workers' compensation claim was not a reasonable excuse for the delay, the analysis also included whether the municipality had received notice of the nature of the claims and in those cases, the filing of the late Notice of Claim was denied, not just because the plaintiff did not demonstrate a reasonable excuse for delay but also because of the lack of information concerning the facts which led to the underlying claims of negligence.

In this case, when analyzing whether the City received the essential facts within the ninety (90) day period, the Court considered three reports that plaintiff attached as part the motion:  the “Employer's Report of Injury/Illness” for the workers' compensation claim dated November 14, 2006, the “Employee's Claim for Compensation” also for the workers' compensation board, dated January 21, 2007.   The third report attached was undated however plaintiff states that it was filed on November 21, 2006, therefor the Court considered the contents.

The first report, the “Employer's Report of Injury/Illness”, gives the date, time, location and description of the accident, identifies the injured plaintiff, including the nature of the injury a “fracture(d) right ankle”, and a description of how the accident occurred;  “I tripped over broken/un-leveled concrete at the gate of the school”, and further, that the “concrete was lifted”.

The second report the “Employee's Claim for Compensation”, dated January 21, 2007, also gave the date, time, the address of the place of accident, and the nature of how the injury occurred:  “I was leaving school, stepped on a lift in the concrete and fracture my ankle (right) was taken to hospital”.

The third report in pertinent part reiterates that the plaintiff “was leaving the school” and walked “out of the doors reach the gate, there a small lift in the concrete where I step off fracturing my ankle.”

The defendant argues that the proffer of records by plaintiff cannot provide the City with general knowledge of the facts and that the Courts have held that the records relied upon to establish knowledge on the part of the municipality must contain the allegations of negligence to provide notice.   In Casias v. City of New York, 39 A.D.3d 681, 833 N.Y.S.2d 662 [2d Dept. 2007], the court stated that:

“․ no information in documents submitted by the plaintiff in support of her motion ․ would've informed the City of the essential facts constituting the claim”.

In other words, the court in Casias looked to the substance of the documents in that case and did not find that there was information sufficient to put the City on notice.   In Caselli v. City of New York, 105 A.D.2d 251, 483 N.Y.S.2d 401 [2d Dept. 1984] the court when discussing the information contained in police reports stated that:

“Generally, knowledge of a police officer or of a police department cannot be considered actual knowledge of the public corporation itself regarding the essential facts of a claim (see, e.g., Williams v. Town of Irondequoit, 59 A.D.2d 1049, 1050 [399 N.Y.S.2d 807 [4th Dept. 1977]] ) ․”.

The court in Matter of Felice v. Eastport/South Manor, 50 A.D.3d 138, 851 N.Y.S.2d 218 [2d Dept. 2008], stated that:

“In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim;  the public corporation need not have specific notice of the theory or theories themselves.”

Here, the Court looked to the substance of the facts contained in the documents attached to the motion and finds that although the City did not receive specific notice of the theory of negligence itself, the City did receive more than general information and that the facts contained in the reports provide them with sufficient knowledge of the nature of the claim of negligence, including the date, place, time and nature of injury of the plaintiff, as well as the specific location and reason for the fall;  that there was a lift in the concrete next to the gate outside the school doors.

The Court also considered whether the defendant would be prejudiced by such a delay in service of the late Notice of Claim.   The Court in Matter of Felice v. Eastport/South Manor, 50 A.D.3d 138, 851 N.Y.S.2d 218 [2d Dept. 2008] when analyzing whether the municipality has been prejudiced by the delay in filing the Notice of Claim noted that:

“Of course, when the public corporation has actual knowledge of the facts constituting the claim, it may be easier for a claimant to meet this burden (see Gibbs v. City of New York, 22 A.D.3d 717, 719 [804 N.Y.S.2d 393] [[2d Dept.] 2005] ).   Indeed, the Court of Appeals has recently observed that “proof that the defendant had actual knowledge is an important factor in determining whether the defendant is substantially prejudiced by such a delay” (Williams v. Nassau County Med. Ctr., 6 N.Y.3d [531] at 539 [814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006]];  see Jordan v. City of New York, 41 A.D.3d 658 [838 N.Y.S.2d 624] [[2d Dept.] 2007];  Matter of Vasquez v. City of Newburgh, 35 A.D.3d 621, 623 [826 N.Y.S.2d 648] [[2d Dept.] 2006];  Rechenberger v. Nassau County Med. Ctr., 112 A.D.2d 150, 153 [490 N.Y.S.2d 838] [[2d Dept.] 1985] ).”

Because the City had actual notice of the nature of how the injury occurred and because a raised sidewalk is not necessarily a transient condition in its nature, the Court finds that there is no substantial prejudice to the City.

Accordingly, the application to serve a late Notice of Claim is granted.

The foregoing constitutes the decision and Order of the Court.

ROBERT J. MILLER, J.

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