Opinion
Index No. 512651/2019
10-13-2022
Dar Es Salaam Mosley, as Administrator of the Estate of O'Neal Shurome Mosley and Dar Es Salaam Mosley, Individually, Plaintiff(s) v. New York City Housing Authority, City of New York, John Doe 1, and John Doe 2, Defendants.
Attorney for Petitioner Law Office of Charles Nathan, P.C. Attorney for Respondent City of New York Sylvia Hinds-Radix Elgar Place Corporation Counsel
Unpublished Opinion
APPEARANCES
Attorney for Petitioner
Law Office of Charles Nathan, P.C.
Attorney for Respondent City of New York
Sylvia Hinds-Radix
Elgar Place
Corporation Counsel
DECISION /ORDER
KATHERINE A. LEVINE, J. S.C.
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
Petitioner Dar Es Salaam Mosley ("petitioner" or "Mosley"), individually and as administrator of the estate of her son O'Neal Shurome Mosley, seeks leave to file a late notice of claim pursuant to General Municipal Law § 50-e against the City of New York (the "City"or "defendant"). Plaintiff's son was shot dead on March 10, 2018, in front of the public housing complex owned by the New York City Housing Authority ("NYCHA"), where she and her son resided. Plaintiff claims that the city street lights in front of their residence were not working at the time of the shooting, and that the LED light towers put in place by the NYCHA to illuminate the area were also not working. She claims that NYCHA and the City's negligence, carelessness and recklessness in failing to provide adequate lighting was the proximate cause of the death of her son.
Plaintiff filed a notice of claim with NYCHA on June 8, 2018, within 90 days after the incident, although she incorrectly identified the defendant as the City, and not NYCHA. On June 6, 2019, after securing proper legal authority to sue after having obtained letters of administration for the estate of her son, plaintiff filed a petition to file a late notice of claim against NYCHA and the City. On December 6, 2019, this court granted the petition to file a late notice of claim against NYCHA, but reserved decision on the petition to file a late notice of claim against the City. The court ordered the parties to brief whether the City acquired timely actual knowledge of the claim based upon the notice of claim served upon the NYCHA on June 8, 2018.
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 it 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 N.Y.2d 389, 392 (2000); Bowers v City of New York, 147 A.D.3d 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, by considering whether (1) the petitioner has a reasonable excuse for the failure to serve a timely notice of claim; (2) the municipality received actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the municipality in its defense on the merits. Mtr. of Shavreshyan v. City of New York, 207 A.D.3d 470 (2d Dept. 2022). The presence or absence of any one factor is not determinative. N.F. v City of New York, 161 A.D.3d 1046, 1047 (2d Dept. 2018)
In particular, 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); Mtr. of McGrue v. City of New York, 195 A.D.3d 932, 932 (2d Dept. 2021). See also, Mtr. of Shavreshyan, supra, 207 A.D.3d at 470 (while the presence of any one factor is not determinative, "it is generally recognized that the question of whether the municipal entity timely acquired actual knowledge is of great importance"); Mtr. of Catania v City of New York, 188 A.D.3d 1041, 1042 (2d Dept. 2020) ("question of whether actual knowledge was timely acquired is considered to be the most important factor"). 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. Mtr. of Anthony L. Romero v. County of Suffolk, et al., 2022 NY Slip Op 04966, 2022 N.Y.App.Div. LEXIS 4835, *3 (2d Dept. 2022); Mtr. of Regan v City of New York, 131 A.D.3d 1064, 1066 (2d Dept. 2015).
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. See also, Mtr. of Islam v City of New York, 164 A.D.3d 672, 673 (2d Dept. 2018); Mtr. of Fethallah v New York City Police Dept., 150 A.D.3d 998, 1000 (2d Dept. 2017). Actual knowledge means that one must be able to readily infer from the report that a potentially actionable wrong had been committed by the municipality. Mtr. of Ibrahim v. New York City Tr. Auth., 202 A.D.3d 786, 787-788 (2d Dept. 2022); Mtr. of Islam, supra, 164 A.D.3d at 674.
Petitioner claims that the reason for her lateness with respect to the City is that she was grief stricken by the loss of her son. The court finds that this is not a reasonable excuse since petitioner did not submit evidence that she suffered incapacitating injuries which prevented her from filing a timely notice of claim against the City. Mtr. of Davis v. Inc. Vil. of Laurel Hollow, 195 A.D.3d 1019, 1020 (2d Dept. 2021). The fact that petitioner filed a timely notice of claim against NYCHA implies that it is unlikely that she suffered such incapacitating injuries.
Petitioner further contends that she believed that the notice of claim she filed with NYCHA "would suffice against both the defendants." However, the petitioner's lack of knowledge of the law does not constitute a reasonable excuse for the failure to timely serve the notice of claim. Mtr. of R.N. v Village of New Sq., 164 A.D.3d 508, 510 (2d Dept. 2018). See also, Mtr. of Bonaguro v. City of New York, 122 A.D.3d 731, 733 (2d Dept. 2014) (petitioner's lack of awareness of notice of claim requirement not a reasonable excuse). Contrary to petitioner's contention, notice to the NYCHA cannot be imputed to the City. See, Kelly v City of New York, 153 A.D.3d 1388, 1389 (2d Dept. 2017) (notice to the City cannot be imputed to NYCHA); Martinez v. New York City Hous. Auth., 250 A.D.2d 686, 687 (2d Dept. 1998) (same). Thus, although petitioner filed a timely notice of claim with the NYCHA, such notice could not be imputed to the City.
Petitioner further argues that the City had actual knowledge of the facts underlying the claim and would not be prejudiced by a late notice of claim because the police conducted an investigation of the shooting. The Major Incident Report, attached to the petition, states that: "PO Kayser of the NYPD Housing Bureau reported that at 346 Clifton Place (Front Of) on Saturday March 10, 2018 approximately 3:40 am an unknown perp shot O'Neil Mosley a nonresident male/24. Mr. Mosley was shot twice, once in the abdomen and once in the leg, details of shooting still unknown. Mr. Mosley was removed by EMS to Woodhull Hospital, Pronounced DOA at 5:02 am. There were no reported arrests, There are no CCTV cameras at this location, ongoing investigation." Furthermore, petitioner contends that crime scene and complaint reports were prepared in connection with the investigation, and that they are in the possession of the City. The NYC Police Department denied petitioner's FOIL request for these reports and her appeal from the denial, on the ground that their production "would interfere with a pending criminal investigation." Petitioner contends that these reports might shed light on her claim that the dark conditions were a proximate cause of the shooting.
A report which describes the circumstances of an incident without connecting petitioner's injuries with negligent conduct on the part of the municipality will not be sufficient to constitute actual notice of the essential facts constituting the claim. Mtr. of Lugo v GNP Brokerage, 185 A.D.3d 824, 825 (2d Dept. 2020); D'Agostino v. City of New York, 146 A.D.3d 880 (2nd Dept. 2017). In describing the incident, the Major Incident Report does not connect O'Neil Mosley's injuries to any negligence the City's part; the lighting conditions are not mentioned. Nor can one readily infer from the report that a potentially actionable wrong had been committed by the City. See, Mtr. of Ibrahim, supra, 202 A.D.3d at 787-788; Mtr. of Islam, supra, 164 A.D.3d at 674. Therefore, petitioner did not establish through the Major Incident Report that the City was afforded actual knowledge
However, in the NYPD's response to petitioner's FOIL request, the City admitted that it immediately commenced an investigation following the shooting and that it continues to investigate, and that it possesses crime scene reports. Common sense dictates that the lighting conditions at the time of the shooting would be part of the crime scene investigation, and that the crime scene reports which were not disclosed to plaintiff may have provided actual knowledge to the City as to the degree of illumination at the crime scene.
A petitioner seeking to file a late notice of claim has the initial burden to show that the City will not be substantially prejudiced by a late notice of claim, and the City must then rebut that showing with particularized evidence that it would be substantially prejudiced. Mtr. of Newcomb v Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466 (2016); Mtr. of Grandberry v. City of New York, 169 N.Y.S.3d 660, 662 (2d Dept. 2022). 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." Newcomb, supra, 28 N.Y.3d at 466. An important factor in determining prejudice is whether there is physical evidence recovered 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 the City to reconstruct the conditions on the date of the incident. See, Newcomb, supra, 28 N.Y.3d at 466-467 (Photographs from police file, which documented size and placement of allegedly negligently placed sign on roadway, would permit school district to reconstruct conditions on date of incident, and were sufficient to meet the petitioner's initial burden of establishing lack of substantial prejudice); Alvarez v. New York City Health & Hosps. Corp. (North Cent. Bronx Hosp.), 101 A.D.3d 464 (1st Dep't 2012) (Lack of substantial prejudice established where hospital records, which evidenced an investigation into the cause of the plaintiff's condition, provided "an extensive paper trail and preserved all of the essential facts relating to this claim").
Inasmuch as the NYPD immediately commenced an investigation, and continues to investigate, the petitioner made an initial showing that the City was not prejudiced by her delay in serving a notice of claim. Mtr. of Kerner v County of Nassau, 150 A.D.3d 1234, 1237-1238(2d Dept. 2017). Furthermore, the City fails to rebut this showing with particularized evidence that it will be substantially prejudiced; its conclusory assertion of substantial prejudice is insufficient to rebut petitioner's initial showing. Mtr. Of Ramos v. New York City Housing Auth., 162 A.D.3d 884, 886 (2d Dept. 2018). Aside from the fact that the City's claim that it "will be deprived of a meaningful and adequate opportunity to investigate the incident and to evaluate the merits of the claim" is not sufficiently particular, it is contradictory to its ongoing criminal investigation.
Even assuming that petitioner met his initial burden in showing that the late notice will not substantially prejudice the respondent, this court must still balance all the factors. Mtr. of Shun Mao Ma v New York City Health & Hosps. Corp., 2017 N.Y.App.Div. LEXIS 5897 (2d Dept. 2017); Rosenblatt v. N.Y. City Health & Hosps. Corp., 149 A.D.3d 961, 963 (2d Dept. 2017). The GML § 50-e(5) criteria for filing a late notice of claim must be liberally construed. Morgan v. New York City Housing Authority, 181 A.D.2d 890, 891 (2d Dept. 1992); In re B.G. v. Lawrence Union Free Sch. Dist., 2020 N.Y. Misc. LEXIS 14644, *2 (Sup. Ct. Nass. Co. 2020). Petitioner's lack of a reasonable excuse for her failure to timely serve a notice of claim is not fatal when weighed against the other relevant factors. Mtr. of Gabriel v. City of Long Beach, 168 N.Y.S.3d 853, 854 (2d Dept. 2022). Since defendant has not made any particularized showing of prejudice that will result from the late notice of claim, and the City conceivably had timely actual knowledge by virtue of the police investigation, the balancing of factors militates in favor of granting petitioner leave to file a late notice of claim. Accordingly, the petition file a late notice of claim is granted.
This constitutes the Decision and Order of the Court.