Opinion
No. 702787/2014.
08-18-2014
In the Matter of the Application of Robert DOYLE and Lisa Doyle, Petitioner, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.
Opinion
The following papers numbered 1 to 13 were read on this motion by the petitioners, ROBERT DOYLE and LISA DOYLE, for an order pursuant to General Municipal Law § 50–e(5), to deem their notice of claim timely served nunc pro tunc, or in the alternative, for leave to serve a late notice of claim pursuant to Public Housing Law § 157 :
Papers
Numbered
Order to Show Cause–Affirmation–Exhibits............. 1–5
Affirmation in Opposition–Exhibits–Memo of Law....... 6–10
Reply Affirmation................................... 11–13
Petitioner seeks to commence a negligence action against THE NEW YORK CITY HOUSING AUTHORITY (N.Y.CHA). Petitioner, Robert Doyle, a New York City firefighter submits an affidavit dated April 2, 2014, stating that he sustained personal injuries on January 27, 2013 at approximately 6:00 p.m. while responding to a basement compactor fire located at the Pomonock Houses, a New York City Housing Authority project, located at 67–29 Kissena Boulevard, Queens County, New York. His particular assignment was to access the roof and ventilate the building by opening a roof door and letting all the smoke rise to the top and out of the building.
When he arrived at the scene he accessed the roof from the roof of an adjoining building. He states that while attempting to open the door on the roof of the subject building, he slipped and fell on snow and ice. When he fell he felt pain in his ankle. He was taken to the emergency room, x-rayed and released the same day. Ten days later, on February 6, 2013, he went for an MRI which revealed a fracture and two torn ligaments of the right ankle. Dr. Roberts, petitioner's treating orthopedist, noted in his initial evaluation on March 7, 2013, that the petitioner has a high ankle sprain with nondisplaced posterior malleolar fracture. Immediately following the accident, the petitioner missed two months of work, then went back on light duty performing desk work. For seven months following the accident, the petitioner underwent a course of physical therapy. On November 8, 2013, because he was still experiencing pain in the ankle, the petitioner underwent surgery to repair the torn ligament. Subsequently, he continued with physical therapy two or three times per week. On March 31, 2014, he learned from Dr. Roberts that he may need ankle fusion surgery which would likely end his career as a fireman. The petitioner states that it was not until learning of possible fusion surgery that the serious nature of his injury became clear and he decided to consult counsel.
The proposed Notice of Claim, dated April 22, 2014, states that the petitioner seeks to recover monetary damages for personal injuries due to the negligence of the New York City Housing Authority. The gravamen of the negligence claim is that the plaintiff was caused to fall due to a “dangerous, defective and hazardous condition, which upon information and belief, was affirmatively caused or permitted, despite actual or constructive notice, to remain by The New York City Housing Authority. The Notice of Claim asserts that the NYCHA violated the Firefighter Law, GML 205 –1 and GOL 11–106. The nature of the defective condition is not identified in the proposed Notice of Claim.
Petitioner, contending that the Notice of Claim was served within one year and ninety days of the incident, now seeks leave to deem the notice of claim served with the order to show cause on April 24, 2014, timely filed, nunc pro tunc.
Petitioner contends that the application for leave to file a late notice of claim should be granted because the petitioner was unaware of the severity of his injuries until April 2014 when he was informed that he may require ankle fusion surgery and believed that his career may be over. Citing Swenson v. City of New York, 126 A.D.2d 499 [1st Dept.1987] ; Raizner v. City of New York, 174 A.D.2d 423 [1st Dept.1991], and Espositio v. Carmel Central School District, 187 A.D.2d 854 [3d Dept.1992], counsel asserts that unawareness of the severity of an injury constitutes a reasonable excuse as a matter of law permitting late service of a notice of claim.
Secondly, petitioner claims that the respondent can show no prejudice by the filing of a late notice of claim. Counsel claims that the cause of the fire was investigated by the Fire Marshall and EMS was at the scene. Counsel states that it would be logical to assume that respondent, NYCHA, investigated the cause of the fire as well.
In opposition, counsel for NYCHA claims that as the accident occurred on January 27, 2013, the petitioner, pursuant to Public Authorities Law § 157(2) had 90 days, up until April 27, 2013, to file a timely Notice of Claim. Here, the petitioner served the proposed Notice of Claim on April 24, 2014, one year and eighty seven days after the date of the incident and one year after the Notice of Claim was due. Respondent claims that the NYCHA was not provided with actual notice of the petitioner's injury prior to the filing of the instant motion and did not have notice from any other source that the petitioner was injured when he fell on snow and ice while responding the subject fire until this motion was filed. Counsel asserts that the petitioner has not submitted any accident report or any other document wherein he indicates that he reported to anyone that he slipped on snow and ice on the roof of the building on the date in question. Further, petitioner does not submit a fire department report regarding his injury, any investigatory reports or a Fire Marshall's report. Therefore, respondent argues that the petitioner has presented no proof whatsoever which would tend to show that the respondent could have had notice that the petitioner slipped on snow and ice on the date he responded to the fire such that they could have made a prompt investigation as to the cause of the petitioner's accident.
Respondent asserts that whether or not the NYCHA investigated the cause of the fire is irrelevant as the Housing Authority did not have the opportunity to investigate the cause of the petitioner's injury. Moreover, the proposed Notice of Claim, which is not signed by the petitioner, makes no mention of snow and ice as being the cause of the injury, rather the Notice of Claim states that there was a defective condition on the roof, without identifying what that condition was.
Secondly, respondent claims that the petitioner has failed to present a satisfactory and plausible explanation for the failure to serve a timely notice of claim. Counsel claims that the fact that the petitioner was not aware of the seriousness of his own injury is belied by his own affidavit and the medical records submitted with the motion. Petitioner stated that the first MRI that was taken, two weeks after the accident, revealed two torn ligaments and a fractured posterior malleolus. Petitioner missed two months of work following the accident and the petitioner underwent surgery to repair the ligament tears in November 2013. Counsel claims that the petitioner's medical condition, his surgery, and his lost time from work following the accident were sufficient to have made the petitioner aware of the serious ramifications of his injury prior to his learning that he might need ankle fusion surgery.
Lastly, respondent asserts that NYCHA has been prejudiced by the delay in serving the late notice of claim. Counsel asserts that the delay of over one year has deprived the NYCHA of the opportunity to identify and interview witnesses and because the nature of the snow and ice condition which caused the accident is highly transitory, the passage of time has substantially impeded the respondent from making any investigation. Respondent asserts that the petitioner has presented no accident report, no photographs and has not disclosed the names of any witnesses to the accident. Respondent asserts that without any contemporaneously made report having been provided to the NYCHA, a timely investigation of the petitioner's accident could not have been conducted. Thus, counsel contends that respondent was not given an adequate opportunity to timely and effectively investigate the circumstances of the accident while the factual information was readily available.
In support of the opposition, the respondent submits the affidavit of Demetrice Gadson, Manager of the NYCHA Pomonok Development, who states that he was aware that a fire broke out in the trash compactor room in the basement of 67–29 Kissena Boulevard on January 27, 2013. He states the damage from the fire was confined to the compactor room and there was no damage to the roof. Moreover, he states that he was not aware of, nor was he informed, nor did he receive any reports, documents, or information concerning an incident where a firefighter had an accident on the roof of the building on the same date as the fire in the compactor room. He states that as the Manager of Pomonok development he would have received and known of any such information or reports received by the NYCHA. He states the first time he learned of the petitioner's accident was when he was contacted by NYCHA after they received the petition for leave to serve a late Notice of Claim on behalf of Robert Doyle.
In reply, the petitioner submits that the Fire Department Incident Report indicates that the respondent was aware that a commercial compactor rubbish fire took pace on the premises on January 27, 2013 and that the fire was caused by violations of the New York City Fire Code.Upon review and consideration of the petition, respondent's affirmation in opposition and petitioner's reply thereto this Court finds as follows: Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in negligence against the NYCHA (see Public Authorities Law § 157[2] ). The Court may, however, extend the time to serve a notice of claim pursuant to General Municipal Law § 50–e(1)(a) and (5). In determining whether to grant leave to serve a late notice of claim, the court must consider several factors including (1) whether there is a reasonable excuse for the delay, (2) whether the public corporation acquired actual knowledge of the facts underlying the claim within 90 days or a reasonable time thereafter, and (3) whether the late service would result in substantial prejudice to the public corporation defending on the merits (see General Municipal Law § 50–e[5] ; Matter of Rodriguez v.. Woodhull Sch., 105 AD3d 1050 [2d Dept.2013] ; Arias v. New York City Health & Hosps. Corp., 50 AD3d 830 [2d Dept.2008] ; Matter of Henriques v. City of New York, 22 AD3d 847 [2d Dept.2005] ).
In the instant action, petitioner contends that he did not file a timely notice of claim because he was not aware of the seriousness of his injuries until his orthopedic surgeon informed him in April 2014 as to a possible ankle fusion. However, prior to the petitioner being informed of the possibility of an ankle fusion procedure he had been made aware that he had torn ligaments and a fracture. He missed two months from work after the accident, underwent at least seven months of physical therapy and he underwent an open surgical procedure to repair one of the torn ligaments because he was still experiencing pain to the ankle eleven months after the accident. Under the circumstances, this Court finds that the petitioner, who had been experiencing pain in his ankle for over a year, was well apprised of and should have been able to perceive the serious and disabling nature of the injury prior to being told that he might have to undergo a fusion (see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138 [2d Dept.2008] ; Lefkowitz v. City of New York, 272 A.D.2d 56 [1st Dept.2000] ). Therefore, this court does not find that the petitioner has presented a reasonable excuse for the delay.
Although the failure to offer an excuse for the delay is not fatal where ... actual notice was had and there is no compelling showing of prejudice to respondents ((Matter of Hall v. Madison–Oneida County Bd. of Coop. Educ. Servs., 66 AD3d 1434 [4th Dept.2009], here the petitioner has not met its burden of establishing that the NYCHA acquired actual notice of the essential facts constituting the claim within ninety days of the incident. There is no evidence in the record that the respondent had actual knowledge of the facts essential to the claim within 90 days of the accident or a reasonable time thereafter. “What satisfies the statute is not knowledge of the wrong but notice of the claim. The municipality must have notice or knowledge of the specific claim and not general knowledge that a wrong has been committed” Matter of Henriques v. City of New York, 22 AD3d 847[2d Dept.2005] )citing Matter of Sica v. Board of Educ. of City of NY, 226 A.D.2d 542 [2d Dept.1996] ; also see Matter of Devivo v. Town of Carmel, 68 AD3d 991 [2d Dept.2009] ; Arias v. New York City Health & Hosps. Corp., 50 AD3d 830 [2d Dept.2008] ).
While the Fire Department filed an Incident Report concerning the nature of the fire within the 90 day statutory period, such report only confirms that there was a trash fire of undetermined origin in the incinerator area. The report makes no reference to the petitioner's accident and is therefore, insufficient to place the NYCHA on notice of the actual facts constituting petitioner's claim. Respondent has not put forth evidence that any report was filed which acknowledged that the petitioner was injured when responding to the fire and specifying how the petitioner was injured or his injuries. Further, the report of the Fire Department does not suggest a connection between the happening of the fire and any alleged negligence by the NYCHA in failing to remove snow and ice from its roof. The incident report does not establish that there was an accident sustained by the petitioner and if there was an accident that there was any connection between the accident and any alleged negligence of the NYCHA (see Matter of Riccio v. Town of Eastchester, 65 AD3d 591 [2d Dept.2009] ). Thus, respondent has provided no evidence showing that the respondent had actual knowledge of the facts essential to the petitioner's claim within 90 days of the accident or a reasonable time thereafter (see Andrews v. Long Is. R.R., 110 AD3d 653 [2d Dept.2013] ; Pappalardo v. City of New York, 2 AD3d 699 [2d Dept.2003] ).With respect to prejudice, this court finds that the filing of a late notice of claim concerning a transitory condition such as snow and ice would be highly prejudicial at this time as the respondent has no ability to find witnesses or to investigate an alleged snow and ice condition which occurred in January 2013 (see Matter of Klass v. City of New York, 103 AD3d 800 [2d Dept.2013] ; Tegay v. Rocky Point Sch. Dist., 101 AD3d 985 [2d Dept.2012] ; Matter of Mitchell v. Town of Greenburgh, 96 AD3d 852 [2d Dept.2012] ).Therefore, as the petitioner did not proffer a reasonable excuse for the failure to serve a timely notice of claim upon the respondent and as the respondent did not have actual knowledge of the essential facts underlying the claim within 90 days or a reasonable time thereafter, and as the petitioner did not establish that the NYCHA would not be prejudiced by the delay, the petitioner's motion to file a late notice of claim is denied (see Matter of Destine v. City of New York, 111 AD3d 629 [2d Dept.2013] ).