Opinion
CV–008485–16/BX
03-05-2018
ALLSTATE INSURANCE COMPANY as Subrogee of Cynthia Campos, Plaintiff v. The CITY OF NEW YORK, Defendant.
LAW OFFICES OF JOHN TROP, Attorneys for Plaintiff, By: ROBERT ADAMO, ESQ., 73 Market Street, Suite 375, Yonkers, New York 10710, 914.620.0036 ZACHARY W. CARTER, Corporation Counsel, Attorneys for Defendant, BY: JULIA HARVEY, ESQ., Bronx Tort Office, 198 East 161st Street—3rd Floor, Bronx, New York 10451, 718.503.5055
LAW OFFICES OF JOHN TROP, Attorneys for Plaintiff, By: ROBERT ADAMO, ESQ., 73 Market Street, Suite 375, Yonkers, New York 10710, 914.620.0036
ZACHARY W. CARTER, Corporation Counsel, Attorneys for Defendant, BY: JULIA HARVEY, ESQ., Bronx Tort Office, 198 East 161st Street—3rd Floor, Bronx, New York 10451, 718.503.5055
Sabrina B. Kraus, J.
BACKGROUND
Plaintiff commenced this action pursuant to a summons and complaint, filed on August 23, 2016, seeking $2,358.64 in property damages.
Cynthia Campos (CC) and her husband Peter Mackins (PM) own a home at 2028 Caesar Place, Bronx, New York. CC is the policy holder on insurance for the home. Plaintiff alleges that on December 28, 2015, a New York City Department of Sanitation garbage truck hit a power line, which fell and caused damage to the home. CC was reimbursed for damages by Plaintiff for electrical repairs made to the Subject Premises. Plaintiff files this action as subrogee of CC.
Defendant appeared by counsel and filed an answer on September 12, 2016.
Plaintiff filed a notice of trial on May 23, 2018. Trial was initially scheduled for September 21, 2017, and then January 17, 2018. After January, the trial was adjourned and then held in abeyance pending the instant motion.
THE PENDING MOTION
On January 17, 2018, Defendant moved for dismissal pursuant to CPLR § 3211(7) asserting that Plaintiff had failed to comply with General Municipal Law §§ 50–e and 50–I.
On March 2, 2018, the court heard oral argument and reserved decision.
DISCUSSION
CPLR 3211 § (a)(7) provides for dismissal based on failure to state a cause of action.
General Municipal Law § 50–e(1)(a) requires timely service of a notice of claim as a condition precedent to an action against Defendant ( Herrera v. Duncan , 13 AD3d 485, 485 ), and provides in pertinent part:
In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises.
The intent of the requirement is to protect against unfounded claims and to afford the municipality an adequate opportunity to explore the merits of the claim, close in time to the occurrence of the underlying incident ( Porcaro v. City of New York , 20 AD3d 357, 357–58 ). The notice requirement is not intended to operate to frustrate the rights of litigants with legitimate claims ( Camacho v. City of New York , 187 AD2d 262, 263 ).
New York Gen. Mun. Law § 50–e(2) governs the contents of the notice and provides:
The notice shall be in writing, sworn to by or on behalf of the claimant, and shall set forth: (1) the name and post-office address of each claimant, and of his attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed to have been sustained so far as then practicable but a notice with respect to a claim against a municipal corporation other than a city with a population of one million or more persons shall not state the amount of damages to which the claimant deems himself entitled ....
On February 26, 2016, PM filed a notice of claim filed for this case. Although the notice was filed only in the name of PM, Plaintiff alleges that the notice of claim was filed on behalf of both PM and CC, and that it is therefor a valid predicate to this action. Plaintiff alleges that PM filed the notice of claim because he had the most knowledge about the accident. PM was home, heard a loud noise and went outside to see the downed cable lines and the sanitation truck driving away. PM states in his affidavit that he indicated that the notice was on behalf of both him and his wife by writing both their names on page three of the notice of claim. PM further states that Plaintiff paid $2108.64 for repairs to their home as a result of the damage and that CC and PM paid a $250.00 deductible towards the repairs.
Defendant did not submit any reply disputing this claim, but the page referred to is not attached to the motion papers submitted to the court.
The notice of claim does contain the date, time and location of the incident, the address of the Subject Premises, which is the residence of both PM and CC, and identifies Plaintiff as the insurance company covering the damage.
It is well settled that Plaintiff has the right to rely on a notice of claim of its insured as a subrogee (see eg Hartford Insurance Company v. City of New York 29 AD3d 519 ), but Defendant's motion rests on the argument that because CC is the insured, and not PM, Plaintiff can not rely on the notice of claim filed by PM.
NY Gen. Mun. Law § 50–e (6) provides:
At any time after the service of a notice of claim and at any stage of an action or special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby.
The Court of Appeals has described this statutory provision as ".. the broadest kind of provision giving the courts discretion, in the absence of prejudice to correct, supply or disregard a good faith mistake, omission, irregularity or defect" pertaining to any issue other than service ( Winbush v. City of Mount Vernon 306 NY 327, 331 ).
Thus, it has been held that where a husband has filed a notice of claim, the failure to file on behalf of the wife, or to include her on the notice of claim, was a "nominal mistake" which in no way prejudiced defendant ( Matter of Charlemagne v. City of New York 277 AD 689, affd 302 NY 871 ).
In Charlemagne the Appellate Division held:
If the notice of claim filed by the husband had included the words ‘and on behalf of my wife’ it could not be doubted that the wife's claim would be fully preserved. To construe the statute so strictly that the omission of these words serves to deprive the ... wife of her right to litigate her claim on the merits is to incorporate into the statute a severity in direct contravention of the legislative intent. The statute is remedial and should be liberally construed.
(Id at 692).
Similarly in Przestrzelski v. Board of Education of Ft. Plain School Dist. (71 AD2d 743 ) the court rejected defendant's claim that the notice of claim, which listed an infant's mother as a claimant instead of the infant, was fatally defective holding:
Defendant also argues that the notice of claim requirements contained in section 50–e of the General Municipal Law were not met since the notice of claim in this case stated that the infant's mother was making the claim for medical expenses and property damage, and the amended complaint now makes this the claim of the infant. We find this argument to be without merit. The notice of claim clearly informed the defendant as to the nature of the claim and the items of damage claimed to have been sustained.
(Id at 744).
In this case, there is even less prejudice to Defendant as no additionally liability is incurred by the City as a result of disregarding the alleged defect, it is the same claim for the same amount paid out by the insurance company, who was listed on the notice of claim, that is the basis of the underlying action.
On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether Plaintiff has a cause of action, not whether one is stated (see Guggenheimer v. Ginzburg , 43 NY2d 268, 275 ; Sokol v. Leader , 74 AD3d 1180, 1181–1182 ). In considering such a motion, the court must accord Plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( J.A. Lee Elec., Inc. v. City of New York , 119 AD3d 652, 654 ). On the motion, a court may consider affidavits submitted by the plaintiff to remedy regarding any alleged defects ( Leon v. Martinez , 84 NY2d 83, 88 ). Given that a notice of claim was filed and that the statute allows for the court to disregard the alleged defect, the court finds that the complaint does state a cause of action and that no dismissal is warranted.
Plaintiff has not cross-moved for relief pertaining to the notice of claim, and any formal pre-trial motions under the General Municipal Law must be made in the courts specified by the statute, but it has been held that nothing precludes the trial court from granting any oral motions at trial to disregard any alleged defect in the notice of claim ( Maiello v. City of New York 113 Misc 2d 122 ).
CONCLUSION
Based on the foregoing, Defendant's motion to dismiss for failure to state a cause of action is denied. A new trial date is set for April 16, 2018 at 9:30 in Part 15, Room 503.
This constitutes the decision and order of the Court.