Opinion
2011-10-25
Jermel PALMER, etc., et al., plaintiffs,v.SOCIETY FOR SEAMEN'S CHILDREN, et al., defendants. (Action No. 1).Jermel Palmer, etc., et al., respondents,v.City of New York, appellant. (Action No. 2).
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Julian L. Kalkstein of counsel), for appellant.Asher & Associates, P.C., New York, N.Y. (Robert J. Poblete of counsel), for respondents.Edward Garfinkel, Brooklyn, N.Y. (Fiedelman & McGaw , of counsel), for defendant Society for Seamen's Children in Action No. 1.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Julian L. Kalkstein of counsel), for appellant.Asher & Associates, P.C., New York, N.Y. (Robert J. Poblete of counsel), for respondents.Edward Garfinkel, Brooklyn, N.Y. (Fiedelman & McGaw [Ross P. Masler], of counsel), for defendant Society for Seamen's Children in Action No. 1.
In two related actions to recover damages for personal injuries, etc., which were joined for trial, the defendant in Action No. 2 appeals from an order of the Supreme Court, Richmond County (Aliotta, J.), dated March 22, 2010, which denied its
motion for summary judgment dismissing the complaint in Action No. 2.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the motion of the defendant in Action No. 2 which were for summary judgment dismissing so much of the complaint in Action No. 2 as alleged negligent placement, supervision, and removal of the infant plaintiff while he was in foster care, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, with costs to the appellant, payable by the respondents.
The infant plaintiff allegedly sustained lead poisoning while residing in a foster home in Staten Island from March 1992 through May 1994. The infant plaintiff's biological mother, on his behalf and individually, commenced Action No. 2 against the City of New York (hereinafter the appellant) seeking to recover damages on the theories, inter alia, that it was negligent in the placement of the infant plaintiff in a foster home containing lead-based paint, negligent in the supervision of the infant plaintiff while residing in the foster home, and negligent in failing to remove the infant plaintiff from the foster home immediately after the New York City Department of Health confirmed the presence of lead-based paint in the home. The appellant moved for summary judgment dismissing the complaint in Action No. 2, arguing, inter alia, that the notice of claim was inadequate. The Supreme Court denied the motion.
The purpose of the statutory notice of claim requirement (General Municipal Law § 50–e) is to afford the public corporation “an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available” ( Teresta v. City of New York, 304 N.Y. 440, 443, 108 N.E.2d 397; see O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158; Salesian Socy. v. Village of Ellenville, 41 N.Y.2d 521, 524, 393 N.Y.S.2d 972, 362 N.E.2d 604). To that end, the statute requires that the notice set forth “the time when, the place where and the manner in which the claim arose” (General Municipal Law § 50–e[2]; see Brown v. City of New York, 95 N.Y.2d 389, 393, 718 N.Y.S.2d 4, 740 N.E.2d 1078). The requirements of the statute are met when the notice describes the accident with sufficient particularity so as to enable the defendant to conduct a proper investigation thereof and to assess the merits of the claim ( see O'Brien v. City of Syracuse, 54 N.Y.2d at 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158; Ingle v. New York City Tr. Auth., 7 A.D.3d 574, 777 N.Y.S.2d 154; Cyprien v. New York City Tr. Auth., 243 A.D.2d 673, 674, 664 N.Y.S.2d 574; Levine v. City of New York, 111 A.D.2d 785, 786, 490 N.Y.S.2d 533). Whether the notice of claim substantially complies with the requirements of the statute depends on the circumstances of each case ( see Schwartz v. City of New York, 250 N.Y. 332, 335, 165 N.E. 517; Ingle v. New York City Tr. Auth., 7 A.D.3d 574, 777 N.Y.S.2d 154; Cyprien v. New York City Tr. Auth., 243 A.D.2d 673, 664 N.Y.S.2d 574; Levine v. City of New York, 111 A.D.2d at 786, 490 N.Y.S.2d 533).
Here, the appellant satisfied its prima facie burden of establishing that the notice of claim was plainly inadequate. The notice of claim failed to allege that the infant plaintiff was in foster care at the time of his alleged injuries, or that the appellant was negligent in its placement, supervision, or removal of the infant plaintiff while in foster care ( see Hudson Val. Mar., Inc. v. Town of Cortlandt, 79 A.D.3d 700, 704–705, 912 N.Y.S.2d 623;
Santoro v. Town of Smithtown, 40 A.D.3d 736, 737, 835 N.Y.S.2d 658; Urena v. City of New York, 221 A.D.2d 429, 633 N.Y.S.2d 391; DiMenna v. Long Is. Light. Co., 209 A.D.2d 373, 374–375, 618 N.Y.S.2d 425; Caselli v. City of New York, 105 A.D.2d 251, 253, 483 N.Y.S.2d 401). In opposition, the plaintiffs failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
Moreover, the new theories of liability raised in the complaint in Action No. 2 were not corrections to the notice of claim that may occur under General Municipal Law § 50–e(6), as “amendments of a substantive nature are not within the purview of General Municipal Law § 50–e(6)” ( Demorcy v. City of New York, 137 A.D.2d 650, 651, 524 N.Y.S.2d 742; see Harrington v. City of New York, 6 A.D.3d 662, 776 N.Y.S.2d 592; Johnson v. County of Suffolk, 238 A.D.2d 480, 657 N.Y.S.2d 55).
Since the notice of claim failed to adequately apprise the appellant of the infant plaintiff's claims relating to his placement, supervision, and removal while in foster care, the Supreme Court should have granted those branches of the appellant's motion which were for summary judgment dismissing so much of the complaint in Action No. 2 as alleged negligent placement, supervision, and removal of the infant plaintiff while he was in foster care ( see Ellison v. City of New Rochelle, 62 A.D.3d 830, 832, 879 N.Y.S.2d 200; Finke v. City of Glen Cove, 55 A.D.3d 785, 786, 866 N.Y.S.2d 317; Rosen & Bardunias v. County of Westchester, 158 A.D.2d 679, 680–681, 552 N.Y.S.2d 134, cert. denied sub nom. Bardunias v. County of Westchester, 498 U.S. 1086, 111 S.Ct. 962, 112 L.Ed.2d 1049).
The appellant's remaining contentions are without merit.