Opinion
503295/2017
11-08-2018
Rashard GIBBS, Petitioner v. The CITY OF NEW YORK and The New York City Department of Education, Respondent.
For Plaintiff, Benjamin Salk, Salenger Sack Kimmel & Bavaro, LLP, 180 Froehlich Farm Blvd., Woodbury, NY 11797 For Respondents, Zachary W. Carter, Corporation Counsel of the City of New York, 350 Jay Street, 8th Floor, Brooklyn, NY 11201-2908
For Plaintiff, Benjamin Salk, Salenger Sack Kimmel & Bavaro, LLP, 180 Froehlich Farm Blvd., Woodbury, NY 11797
For Respondents, Zachary W. Carter, Corporation Counsel of the City of New York, 350 Jay Street, 8th Floor, Brooklyn, NY 11201-2908
Katherine A. Levine, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Petitioner's Notice of Petition with Accompanying Affidavits and Exhibits 1
Respondent City's Affirmation in Opposition 2
Petitioner's Reply Affirmation 3
Petitioner's Memorandum of Law 4
This case raises the issue of whether a transitory slippery condition which resulted from a leaking water fountain precludes a finding that a municipality was prejudiced by the filing of a late notice of claim.
Petitioner Rashard Gibbs ("petitioner" or "Gibbs") seeks leave to file a late notice of claim pursuant to General Municipal Law § 50-e. In his proposed notice of claim, petitioner seeks damages from the City of New York ("City") and the New York City Department of Education ("DOE") ("respondents") for injuries allegedly sustained on December 2, 2015, when he slipped in school on a wet floor near a water fountain. His complaint avers that the DOE and City were negligent in allowing a water fountain to leak water on the floor, thereby creating a hazardous condition, and for failure to remedy and warn about the condition. For the reasons set forth below, his application is denied.
In support of his petition to file a late notice of claim, Gibbs submits an undated Comprehensive Injury Report ("Injury Report") generated by the DOE, and a Personal Injury Claim Form ("Claim Form"), which was filed with the City on June 24, 2016. The Injury Report states: "Student slipped and aggravated a previous injury and injured his hip and knee," but does not indicate how the incident occurred. The Claim Form also does not contain any information regarding the incident. Petitioner does not proffer any excuse for his 14 month lateness other than being unaware of his legal rights and statutory requirements.
Petitioner claims that he is entitled to file a late notice of claim since the City timely acquired actual knowledge of the facts underlying his claim and will not be prejudiced. In particular, petitioner claims that the Injury Report timely provided the City with actual knowledge. He also claims that the transitory nature of the defective condition; i.e., a puddle near a leaky water fountain, precludes a finding of prejudice because even if a notice of claim had been timely served, respondents still would have been unable to examine the puddle as it existed on the date of the date of the incident.
Pursuant to General Municipal Law ("GML") § 50-i(a), no personal injury action may be commenced against the City unless a notice of claim was served upon the City within 90 days after the subject claim arose. A notice of claim must state "the time when, the place where and the manner in which the claim arose." General Municipal Law § 50-e(2). The purpose of the statutory notice of claim requirement is to afford the City adequate opportunity to promptly investigate, collect and preserve evidence, and evaluate the merit of a claim while information is still readily available. Brown v. City of New York , 95 NY2d 389, 392 (2000) ; Beary v. Rye , 44 NY2d 398, 412 (1978) ; Bowers v. City of New York , 147 AD3d 894, 895 (2d Dept. 2017).
General Municipal Law § 50-e(5) grants the court discretion to extend the time permitted for filing a late notice of claim. A court's decision on an application to serve a late notice of claim is "purely discretionary." Mtr. of Newcomb v. Middle Country Cent. Sch. Dist. , 28 NY3d 455, 465 (2016). The court must consider whether the City acquired "actual knowledge" of the essential facts constituting the claim within 90 days after it arose or within a reasonable time thereafter. GML § 50-e(5). In order to have "actual knowledge," the City must have knowledge of the facts that underlie the legal theory upon which liability is predicated in the proposed notice of claim. Mtr. of GEICO v. Suffolk County Police Dept. , 2017 NY Slip Op 05436, 2017 NY App. Div. LEXIS 5272, 2017 WL 2855741 (2d Dep't 2017) ; Mtr. of Fethallah v. New York City Police Dept. , 150 AD3d 998, 1000 (2d Dep't 2017) ; Grande v. City of New York , 48 AD3d 565, 566 (2d Dept. 2008). The court must also consider "other relevant facts and circumstances," including whether the petitioner has demonstrated a reasonable excuse for the failure to serve a timely notice of claim and whether the delay would substantially prejudice the City in its defense. Mtr. of Maldonado v. City of New York , 152 AD3d 522 (2d Dept. 2017).
Petitioner's ignorance of the statutory requirement to serve the notice of claim within 90 days after the claim arose is not a reasonable excuse. Mtr. of Murnane v. New York City Sch. Constr. Auth. , 164 AD3d 506, 507 (2d Dept. 2018) ; Mtr. of Minkowicz v. City of New York , 100 AD3d 1000 (2d Dept. 2012) ; Gofman v. City of New York , 268 AD2d 588 (2d Dept. 2000). He therefore fails to meet the reasonable excuse prong.
The courts accord greatest "importance" and "weight" to whether the City acquired timely actual knowledge. Mtr. of Ashkenazie v. City of New York , 2018 NY Slip Op 06734, 2018 NY App. Div. LEXIS 6742, *2, 2018 WL 4905463 (2d Dept. 2018) ; Mtr. of D.M. v. Center Moriches Union Free Sch. Dist. , 151 AD3d 970, 971 (2d Dept. 2017) ; Mtr. of Jaffier v. City of New York , 148 AD3d 1021, 1022 (2d Dept. 2017). Indeed, when a petitioner has demonstrated that the City acquired timely knowledge of the essential facts of the claim, this establishes lack of prejudice to the City regardless of the other two factors. Mtr. of Jaffier , supra , 148 AD3d at 1023 ; Jordan v. City of New York , 41 AD3d 658, 660 (2d Dept. 2007).
This Court finds that the Injury Report was insufficient to provide respondents with actual knowledge because it made no mention of the underlying facts causing the injury upon which petitioner's theory of liability is predicated. In order for a report to provide actual knowledge of the essential facts, "one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation." Mtr. of Fethallah, supra, 150 AD3d at 1000 ; Mtr. of Clark v. City of New York , 139 AD3d 849, 850 (2d Dep't 2016). While the Injury Report indicates that petitioner slipped and was injured, there is no mention of either a negligently maintained, leaky water fountain or a wet floor. See, Mtr. of D'Agostino v. City of New York , 146 AD3d 880, 881 (2d Dept. 2017) (Since police accident report did not connect injuries sustained by the petitioners to any negligent conduct on the part of the respondents' vehicle operator, it was not sufficient to provide the respondents with actual knowledge); Mtr. of Maldonado v. City of New York , 152 AD3d 522, 523 (2d Dept. 2017) (Line of duty injury report insufficient to provide actual knowledge because it merely indicated that the petitioner was injured when his left foot got stuck in the grate of the step as he was descending a spreader but made no mention of the claim that step grate was defective and that the City negligently maintained the sanitation vehicle). Accordingly, petitioner failed to establish that respondents acquired timely actual knowledge from the Injury Report.
. Petitioner propounds a new theory as to the prejudice prong of the test: that the transitory nature of the defective condition precludes a finding of prejudice because regardless of whether the notice of claim was timely served, respondents would still have been unable to examine the puddle as it existed on the date of the date of the incident. This argument has no merit and obfuscates the issue that respondents did not have actual notice. This Court finds that respondents will be substantially prejudiced by the late notice of claim.
A petitioner seeking to file a late notice of claim has the initial burden to show that the municipality will not be substantially prejudiced by the delay, and then the respondent must rebut that showing with particularized evidence that it has been substantially prejudiced. Mtr. of Newcomb v. Middle Country Cent. Sch. Dist. , 28 NY3d 455, 467 (2016). A petitioner's initial showing need not be extensive but "must present some evidence or plausible argument that supports a finding of no substantial prejudice." Id. , 28 NY3d at 466. Plaintiff has not presented any evidence or plausible argument which would support a finding of no substantial prejudice. The transitory nature of a defective condition precludes a finding of prejudice only where the municipal defendant received actual notice within the 90-day period. Mtr. of Caridi v. New York Convention Ctr. Operating Corp. , 47 AD3d 526, 526 (1st Dept. 2008) ; Johnson v. Katonah - Lewisboro Sch. Dist. , 285 AD2d 490, 491 (2d Dept. 2001) ; Morrison v. New York City Health & Hosps. Corp. , 244 AD2d 487, 488 2d Dept. 1997).
This Court finds that a transitory condition does not ipso facto change the analysis as to whether a municipality would be prejudiced by a late notice of claim. The most important factor in determining prejudice is whether there is physical evidence taken on the date of the incident, which is currently available for inspection, or whether there are witnesses to the incident who could testify or be deposed. These factors would permit respondents to reconstruct the conditions on the date of the incident. See, Mtr. of Minkowicz v. City of New York , 100 AD3d 1000, 1000-1001 (2d Dept. 2012) (Petitioner failed to establish that late notice of claim would not substantially prejudice City in maintaining its defense on the merits, given transient nature of the pothole in the street over which the petitioner allegedly tripped and fell); Mtr. of Hubbard v. County of Madison , 71 AD3d 1313, 1315-1316 (3d Dept. 2010) (despite transitory nature of the accident scene, no substantial prejudice found where numerous photographs were taken of accident scene shortly after the collision and witnesses were available to be interviewed). Plaintiff does not claim that any physical evidence was taken on the date of the incident; i.e., photographs of the alleged puddle or water fountain; nor does he claim that there are witnesses to the incident who could testify or be deposed. Furthermore, this Court finds that respondents did not acquire timely notice of the incident. Therefore, this Court finds that respondents would be substantially prejudiced by a late notice of claim.
Since Gibbs has failed to meet any of the criteria for excusing the filing of a late notice of claim, his petition is denied. This constitutes the Decision and Order of the Court.