Opinion
SC-16016-2019
04-05-2019
Yehoshua MYSKI, Claimant, v. CITY OF NEW YORK, Defendant.
Plaintiff pro se Corporation Counsel, New York, NY, For Defendant
Plaintiff pro se
Corporation Counsel, New York, NY, For Defendant
Lisa S. Headley, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this: Motion by Defendant to Dismiss the Complaint pursuant to CPLR § 3211(a)(5).
Papers Numbered
Notice of Motion and Affidavits Annexed 1
Affidavit in Opposition 6
Reply 7
Exhibits 2-5, 8-10
The pro se Plaintiff filed a small claims action for damages to his vehicle that was involved in an accident on August 17, 2017 with a New York City Sanitation Department (DSNY) truck that was street sweeping. Plaintiff alleges that his car was pushed into another parked car by the DSNY truck. On November 9, 2017, the Plaintiff filed a Notice of Claim with the New York City Comptroller's Office and on November 24, 2017, the office sent the Plaintiff correspondence that he has 1 year and 90 days from the date of the incident to file a lawsuit.
The Defendant, by and through Corporation Counsel, filed a Motion to Dismiss the small claims action filed by the Plaintiff for property damage of his vehicle in the amount of $4,892.96. The Defendant argues that the Plaintiff failed to commence this action within the 1 year and 90-day statute of limitations pursuant to the General Municipal Law (GML) § 50-i and CPLR § 217-a. The Defendant claims that the Plaintiff is barred from bringing the instant lawsuit because the Plaintiff waited until December 31, 2018 to file the lawsuit, which is 46 days after the 1 year and 90-day period.
The Plaintiff submitted an affidavit in opposition and alleges that he filed a notice to the City within 90 days and was in communication with the Comptroller's Office since the filing. Plaintiff states that he spoke to Thomas Orawiec from the Comptroller's Office on a monthly basis, and when he followed-up, he was told that the process takes time and to follow-up in two months due to missing information. Plaintiff further claims that in the beginning of 2018, Thomas Orawiec told him that the City was responsible for the damage to his vehicle and needs to assess the damage. As a result, the Plaintiff gave Mr. Orawiec his work and home address, and took his vehicle to the collision shop for a quote, which he then submitted to Mr. Orawiec. Thereafter, the Plaintiff claims that he followed-up every few weeks by phone and was constantly told that "it takes time."
The Defendant filed a Reply and argues that the Plaintiff failed to acknowledge that the small claims action was not filed timely. The Defendant asserts that the dismissal of this action is not discretionary when the complaint is untimely filed.
The small claims court is designed to provide, "substantial justice between the parties according to substantive law," without having to be bound by the rules of practice and procedure or evidence. See, New York City Civil Court Act § 1804 ; Weiner v. Tel Aviv Car and Limousine Service, Ltd., 141 Misc 2d 339, 553 N.Y.S.2d 372 (NY City Civ.Ct.1988). General Municipal Law § 50—i (1) applies to all causes of action against the City seeking to recover damages for injury to property because of negligence or a wrongful act. The action must be commenced within 1 year and 90 days after the date of the incident. See , GML § 50—i (1) . Here, the Motion to Dismiss asserts that the Plaintiff is suing the City for damages to his property, which occurred beyond the 1-year and 90-day statute of limitations period.
"Statutes of limitations have been held to provide an important public policy of ‘giving repose to human affairs’ and are deemed more than procedural or evidentiary rules such that they should be applied in Small Claims Actions." Hakala v. Travelers , 22 Misc 3d 1126(A), 880 N.Y.S.2d 873 (Civ. Ct. 2009) (internal citations omitted). The doctrine of estoppel requires the plaintiff to provide facts which demonstrate that defendant, by its conduct, "lulled plaintiff into sleeping on its rights under the insurance contract." Gilbert Frank Corporation v. Federal Insurance Company, 70 NY 966. 520 N.E.2d 512, 525 N.Y.S.2d 793(1988).
In Hakala v. Travelers citing Gilbert Frank Corporation v. Federal Insurance Company , supra , the court held that "the Plaintiff failed to prove that the Defendant should be estopped from asserting a statute of limitations defense because he was intentionally lulled into refraining from commencing the lawsuit within the two-year limitation period. There is no demonstration by Plaintiff of communications with the Defendant or additional requests for a full copy of the policy for almost six years, until commencement of the action." The court further held that "the proof provided does not rise to the level of establishing a deceptive practice but rather of [the] plaintiff sleeping on his rights." In contrast and in the case at bar, the court finds that the Plaintiff was lulled into refraining from commencing the action timely and filed the instant action only 46 days late.
Here, the Court finds the Plaintiff's oral argument credible that he was in constant communications with Thomas Orawiec from the Comptroller's Office since he filed the Notice of Claim. Further, the Court believes the Plaintiff when he argued that he was told in early January 2018 that the City would take responsibility for the damages and the City needed an estimate to repair the vehicle. As a result, based on the conduct of Mr. Orawiec any reasonable person would have been led to believe that the vehicle would be fixed by obtaining the repair estimates and submitting them to the Comptroller's Office, as the Plaintiff herein believed.
In the interest of justice, the Court is denying the Defendant's Motion to Dismiss based on the actions, involvement and representations of Mr. Orawiec of the Comptroller's Office for almost a year, which ultimately led to the delay in the filing of the instant lawsuit. The Defendant's assertion that the small claims complaint was filed merely 46 days after the statute of limitations had run does not unduly prejudice the Defendant. The Defendant was on notice of this claim as soon as the Plaintiff filed the Notice of Claim on November 9, 2017. As such, there will be no prejudice to the Defendant if the Motion to Dismiss is denied because prejudice "involves impairment of the defendant's ability to defend on the merits, rather than foregoing such a procedural or technical advantage." See , Busler v. Corbett, 259 AD2d 13, 16 (4th Dep't 1999) citing National Union Fire Ins. Co. v. Barney Assoc., 130 F.R.D. 291, 294 (S.D.NY 1990).
In addition, New York's strong public policy is to permit parties to litigate on the merits. See, Meyer v. Rose , 160 AD2d 565, 554 N.Y.S.2d 212 (1st Dep't 1990) ; Bell v. Toothsavers, Inc. , 213 AD2d 199, 623 N.Y.S.2d 579 (1st Dep't 1995). The Plaintiff credibly asserted that the Defendant accepted liability and agreed to pay for the damages of the vehicle. Dismissing this lawsuit against the Plaintiff and in favor of the Defendant would be a miscarriage of justice and as such, this Court hereby denies the Defendant's Motion to Dismiss.
This matter will be adjourned to the Small Claims Part at 2:30pm on May 16, 2019 for a trial based on the merits of the case. The parties are directed to bring in their witnesses and supporting documents on the return date.
This constitutes the Decision and Order of the Court.
The Court to mail this Order to the parties.