Opinion
2011-11-29
In the Matter of Linda MOORE, respondent, v. NEW YORK CITY HOUSING AUTHORITY, appellant.
Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J. Lawless and Richard E. Lerner of counsel), for appellant. Bosco Bisignano & Mascolo, LLP (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), for respondent.
Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J. Lawless and Richard E. Lerner of counsel), for appellant. Bosco Bisignano & Mascolo, LLP (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50–e (5) for leave to serve a late notice of claim, the New York City Housing Authority appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated January 27, 2011, which granted the petition.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the petition is denied.
The Supreme Court improvidently exercised its discretion in granting the petitioner leave to serve a late notice of claim on the New York City Housing Authority (hereinafter the Housing Authority). Although one of the factors a court must consider in determining an application for leave to serve a late notice of claim is whether the claimant “made an excusable error concerning the identity of the public corporation against which the claim should be asserted” (General Municipal Law § 50–e[5] ), here, the petitioner's failure to ascertain that the Housing Authority owned the premises abutting the accident site was due to her failure to exercise due diligence in investigating the matter. Accordingly, the petitioner's failure to serve a timely notice of claim on the proper public corporation was not an excusable error ( see Matter of Devivo v. Town of Carmel, 68 A.D.3d 991, 992, 891 N.Y.S.2d 154; Matter of Portnov v. City of Glen Cove, 50 A.D.3d 1041, 1043, 856 N.Y.S.2d 655; Bridgeview at Babylon Cove Homeowners Assn., Inc. v. Incorporated Vil. of Babylon, 41 A.D.3d 404, 405–406, 837 N.Y.S.2d 330; Jenkins v. New York City Hous. Auth., 29 A.D.3d 319, 320, 813 N.Y.S.2d 301; see also Lugo v. New York City Hous. Auth., 282 A.D.2d 229, 724 N.Y.S.2d 28).
Further, the Housing Authority did not acquire “actual knowledge of the essential facts constituting the claim” within 90 days after the claim arose or a reasonable time thereafter (General Municipal Law § 50–e[5] ). Knowledge of the accident cannot be imputed to the Housing Authority by virtue of an ambulance call report generated by the City of New York, which is a separate entity ( see Singh v. City of New York, 88 A.D.3d 864, 931 N.Y.S.2d 246; Matter of Guminiak v City of Mount Vernon Indus. Dev. Agency, 68 A.D.3d 1111, 1112, 891 N.Y.S.2d 469; Matter of National Grange Mut. Ins. Co. v. Town of Eastchester, 48 A.D.3d 467, 468, 851 N.Y.S.2d 632). In any event, the ambulance call report was insufficient to provide actual knowledge of the essential facts underlying the claim because it did not connect the petitioner's injuries to any alleged negligence on the part of the Housing Authority ( see Matter of Schoen v. City of New York, 86 A.D.3d 575, 926 N.Y.S.2d 907; Matter of Werner v. Nyack Union Free School Dist., 76 A.D.3d 1026, 1027, 908 N.Y.S.2d 103; Matter of Portnov v. City of Glen Cove, 50 A.D.3d at 1042, 856 N.Y.S.2d 655; Matter of Carpenter v. City of New York, 30 A.D.3d 594, 595, 817 N.Y.S.2d 155).
Finally, the petitioner failed to establish that the Housing Authority would not be substantially prejudiced in its defense on the merits should leave be granted ( see Singh v. City of New York, 88 A.D.3d 864, 931 N.Y.S.2d 246; Matter of Werner v. Nyack Union Free School Dist., 76 A.D.3d at 1027, 908 N.Y.S.2d 103; Matter of Portnov v. City of Glen Cove, 50 A.D.3d at 1043, 856 N.Y.S.2d 655).