Opinion
22694/05.
Decided March 8, 2006.
Plaintiff moves this court for an order permitting plaintiff to file a late notice of claim in accordance with General Municipal Law § 50-e(5) and deem said notice of claim to have been filed nunc pro tunc; affirmation in opposition having been submitted; and reply affirmation submitted thereto; after due deliberation having been had, and the reasons set forth below, the motion is hereby denied.
This is an action seeking damages for personal injuries sustained by the plaintiff, Joan DeJesus on January 9, 2005, when plaintiff was assaulted by four unknown assailants while exiting the elevator. . The assault took place at the entrance to premises known as 360-362 East 137th Street, County of the Bronx, City and State of New York. Plaintiff claims said occurrence was a result of the defendant's negligence in maintaining the entrance ways to the premises and negligent lack of security. As a result of the assault, plaintiff suffered a fracture of the facial cavity necessitating surgical intervention. Plaintiff alleges he was emotionally distraught and consumed with fear, depression and anxiety and unable to return to work for a period of time. Plaintiff now moves this court for an order pursuant to General Municipal Law § 50-e(5) to allow plaintiff to file a late notice of claim and deem said notice of claim filed nunc pro tunc.
Prior to commencing an action against a municipality, a notice of claim must be filed with the municipality within the statutory period. General Municipal Law § 50-e. It is a statutory device that creates a condition precedent. Therefore, service of a late notice of claim without leave of the court is a nullity. See Kokkinos v. Dormitory Authority of the State of NY, 238 AD2d 550, 657 NYS2d 81 (2nd Dept. 1994); DeLaCruz v. City of New York, 221 AD2d 168, 633 NYS2d 267 (1st Dept. 1994).
General Municipal Law § 50-e(5) provides the court with discretion to extend the time to serve a notice of claim. However, the extension "shall not exceed the time limited for the commencement of an action" against the municipality. See Hall v. City of New York ___ N.Y.S.2d, 2003, WL 22746924, 2003 NY Slip Op. 18535 (1st Dept. 2003) Armstrong v. New York Convention Center Operating Corporation, 203 AD2d 170, 610 NYS2d 267; Pierson v. City of New York, 56 NY2d 950, 453 NYS2d 615, 439 NE2d 331. In determining whether to grant or deny a motion, the court should look at the following criteria:
1) whether the plaintiff demonstrated a reasonable excuse for the delay to serve a timely notice of claim;
2) whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter
3) whether the claimant was an infant, or mentally or physically incapacitated and
4) whether the delay would substantially prejudice the municipality in maintaining its defense on the merits.
See Kittredge v. New York City Hous. Auth., 275 AD2d 746, 713 NYS2d 219 Plaintiff's moving papers merely rely on the attorney's affirmation in support of it's motion. Defendant claims that plaintiff's motion should be denied in that plaintiff's sole reliance on the affirmation of counsel is "patently insufficient". Clearly, plaintiff's moving papers are insufficient, as an attorney's affirmation lacks personal knowledge of the facts constituting the claim. Plaintiff subsequently submits a reply affirmation with the affidavit of the plaintiff, a copy of the police report, and a signed statement of Marlene Larrier, attached thereto. In order to determine the issue on its merit, this Court will consider the motion.
The plaintiff in its moving papers claims that the reason for the delay in serving a timely notice of claim was due to the fact that plaintiff was unaware he had a cause of action and the ninety (90) days limitation. Recent cases have held that failure to provide a reasonable excuse for failing to serve a notice of claim within the statutory period, standing alone, does not require a denial of the application. Porcaro v. City of New York 20 AD3d 357, 799 NYS2d 450 (1st Dept. 2005); Bialer v. City of New York, 23 AD3d 304, 806 NYS2d 471 (1st Dept. 2005). However, the court in Porcaro, supra stated as follows:
"The key factors the court must consider in determining whether leave should be granted are whether the movant demonstrated a reasonable excuse for the failure to serve the 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 reason-able time thereafter, and whether the delay would substantially prejudice the municipality in its defense.' Matter of Dubowy v. City of New York 305 AD2d 320, 321, 759 NYS2d 325 {2003}"
Plaintiff claims that due to the nature of the injuries sustained plaintiff was both physically and mentally incapacitated. The courts have held that a physical or mental incapacitation may be a valid excuse for the delay. Hilda B.V. New York City Hous. Auth., 224 AD2d 304, 638 NYS2d 36 (1st Dept. 1996). However, medical documentation must be submitted to establish the injury, extent of the injury and incapacitation of the injury. See Gaudio v. City of New York, 235 AD2d 228, 651 NYS2d 530; Gomez v. City of New York 250, AD2d 443, 673 NYS2d 109 (1st Dept. 1998). In the case at bar, plaintiff alleges a fracture of a facial bone which required surgical repair. Plaintiff, however, has failed to provide any medical records or documentation to support plaintiff's medical condition or disability from work.
Plaintiff submits the police report prepared with regard to the assault in question. It is well settled that a filing of a police report does not, in itself, establish actual notice. See Olivera v. City of New York, 270 AD2d 5 (1st Dept. 2000); Walker v. NYC Transit Authority, 266 AD2d 54, 698 NYS2d 460 (1st Dept. 1999). The narrative portion of the report reads as follows:
"A/T/P/O C/V WAS EXITING 360 E. 137TH STR. WHEN THEY WERE APPROACHED BY FOUR UNKNOWN PERPS. PERPNo.1 STRUCK JOAN DeJESUS (C/V) IN THE HEAD AND BODY WITH A 4FT BROWN STICK CAUSING LACERATION ON THE HEAD AND SWELLING TORIGHT EYE. LACERATION ON BACK AND BRUISES ON HEAD AND BODY. OTHER UNKNOWN PERPS. PUNCHED AND KICKED JOSE GARCIA IN THE HEAD AND BODY CAUSING BRUISING AND SUBSTANTIAL PAIN TO HEAD AND TORSO AREA. PERPS THEN REMOVED 2 YELLOW METAL CHAINS AND 2 CELLPHONES FROM JOAN DeJESUS. CANVAS CONDUCTED WITH JOSE GARCIA. NEG. RESULTS DET. SAXES NTFD. (NIGHTWATCH)"
The description of the criminal assault "did not contain facts sufficient to constitute notice to defendants of plaintiff's intention to file a civil suit based upon a claim of negligent security. Rivera v. New York City Housing Authority, 25 AD3d 450 (1st Dept. 2006); Tavarez v. City of New York ___ N.Y.S.2d ___, 2006, WL 463563 (N.Y.A.D. 1st Dept.), 2006 N.Y.Slip Op 01390; Vargas v. New York City Housing Authority, 232 AD2d 263, 648 NYS2d 546 (1st Dept. 1996). Further, plaintiff in support attaches the unsworn, signed statement of Marlene Lanier, the previous manager of the Mitchell Houses. Ms. Lanier's statement does not establish actual knowledge of the essential facts constituting the claims since her statement relies upon the police report prepared for the incident in question.
In order to satisfy the mandates of the statute, to impart notice to the municipality the plaintiff must demonstrate knowledge of the claim, not knowledge of the occurrence. Chattergoon v. New York City Hous., Auth. 161 AD2d 141, 142 (1990) affd. 78 NY2d 958 (1991). Plaintiff has failed to establish or demonstrate "knowledge or notice" to defendants of the claim. As such, plaintiff's motion is hereby denied.
This constitutes the decision and order of the court.