Opinion
No. 608/2015.
08-19-2015
Olena SHEVCHENKO, Plaintiff, v. The CITY OF NEW YORK and New York City Transit Authority, Defendants.
Alexander Roytblat, Esq., Roytblat and Kalnat, P.C., Brooklyn, Attorney for Petitioner. Corporation Counsel, New York City, Attorney for Defendant.
Alexander Roytblat, Esq., Roytblat and Kalnat, P.C., Brooklyn, Attorney for Petitioner.
Corporation Counsel, New York City, Attorney for Defendant.
PHYLLIS ORLIKOFF FLUG, J.
The following papers numbered 1 to 6 read on this motion
| Order to Show Cause | 1–2 |
| Notice of Cross–Motion | 3–4 |
| Affirmation in Opposition | 5 |
| Affirmation in Opposition/Reply | 6 |
Plaintiff, Olena Shevchenko, moves inter alia for leave to serve a late notice of claim on defendants, the City of New York (hereinafter "City") and New York City Transit Authority (hereinafter "NYCTA"). Defendant, NYCTA, cross-moves inter alia to dismiss plaintiff's notice of claim and any potential cross-claim that may be asserted against it.
This is an action to recover damages for personal injuries allegedly sustained on April 4, 2014 as a result of a trip and fall due to an allegedly defective condition on the sidewalk abutting the premises located at 118–29 Queens Boulevard, in the County of Queens, City and State of New York.
A Notice of Claim must be served within ninety days after the claim arises (GML 50–e[1][a] ). A court may grant the claimant leave to serve a late Notice of Claim if leave is sought within the time limited for the commencement of the action (See Pierson v. City of New York, 56 N.Y.2d 950 [1982] ).
"In exercising its discretion to grant leave to serve a late notice of claim, the court must consider various factors, including whether (1) the claimant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (2) the claimant was an infant, or mentally incapacitated, (3) the public corporation [or its attorney or its insurance carrier] acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation in defending on the merits" (Keyes v. City of New York, 89 AD3d 1086 [2d Dept.2011] (citing GML 50–e[5] ; Iacone v. Town of Hempstead, 82 AD3d 888 [2d Dept.2011] ; Barnes v. New York City Health & Hosps. Corp., 69 AD3d 934 [2d Dept.2010] ; Chambers v. Nassau County Health Care Corp., 50 AD3d 1134, 1135 [2d Dept.2008] )).
Plaintiff's wholly unsubstantiated claim of law office failure fails to demonstrate a reasonable excuse for failing to serve a timely notice of claim (See Grasso v. Nassau County, 109 AD3d 579, 580 [2d Dept.2013] ; Belenky v. Nassau Cmty. Coll., 4 AD3d 422, 423 [2d Dept.2004] ; see also Seif v. City of New York, 218 A.D.2d 595, 596 [1st Dept.1995] ).
Nevertheless, failure to set forth a reasonable excuse is not fatal to the application if the municipality had actual knowledge and there is an absence of prejudice (See Rivera–Guallpa v. County of Nassau, 40 AD3d 1001, 1002 [2d Dept.2007] ; Nardi v. County of Westchester, 18 AD3d 521, 522 [2d Dept.2005] ; Hendershot v. Westchester Medical Ctr., 8 AD3d 381, 382 [2d Dept.2004] ).
Contrary to defendants' contentions, a notice of claim served shortly after the expiration of the 90 day statutory period has been found sufficient to provide actual knowledge within a "reasonable time" under the statute (See Silberman v. City of Long Beach, 87 AD3d 1071 [2d Dept.2011] ; Gelish v. Dix Hills Water Dist., 58 AD3d 841, 842 [2d Dept.2009] ; see also Erichson v. City of Poughkeepsie, 66 AD3d 820, 821 [2d Dept.2009] ; see generally Ambrico v. Lynbrook Union Fee Sch. Dist., 71 AD3d 762, 763 [2d Dept.2010] ).
Here, plaintiff's notice of claim, served on July 7, 2014, only four (4) days and two (2) working days after the expiration of the Notice of Claim period, was sufficient to provide defendants with actual knowledge within a reasonable time (See Silberman, supra, at 1071; Gelish, supra, at 842).
Because defendants had actual knowledge, plaintiff has met her burden of establishing that defendants are not prejudiced by the failure to serve a timely notice of claim (See Jordan v. City of New York, 41 AD3d 658, 660 [2d Dept.2007] ).
Defendants' conclusory assertion of prejudice is wholly without merit (See Speed v. A. Holly Patterson Extended Care Facility, 10 AD3d 400, 401 [2d Dept.2004] ). Defendants fail to identify any investigatory steps they were prevented from taken due to the lack of a notice of claim and there is no evidence to suggest that the short delay has prevented defendants from obtaining information that would have otherwise been available (See Gibbs v. City of New York, 22 AD3d 717, 719–20 [2d Dept.2005] ; McHugh v. City of New York, 293 A.D.2d 478 [2d Dept.2002] ).
Notably, defendant NYCTA has already held a 50–h hearing of the plaintiff, and, as such, did have the opportunity to timely investigate plaintiff's claims.
The NYCTA's cross-motion is patently improper and without merit. There is simply no basis under the CPLR for a party to move for dismissal of a notice of claim and/or prevent a party from asserting a "potential" cross-claim.
The NYCTA cites CPLR §§ 3211 and 3212 as the statutory bases supporting its cross-motion.
CPLR § 3211 provides a basis for a party to dismiss a cause of action that has been asserted against it. Here, as plaintiff has not yet served a complaint in this action, there is no cause of action that has been asserted against the NYCTA that can be dismissed under this section.
CPLR § 3212 allows a party to move for summary judgment after issue has been joined which plainly has not yet happened in this action.
Accordingly, plaintiff's application is granted to the extent that plaintiff is directed to serve her notice of claim on defendants no later than September 30, 2015.
Defendant's cross-motion is denied, in its entirety.