Opinion
169375-08.
Decided December 14, 2009.
The plaintiff in the case, George Sommerfield was self-represented, and the defendant, the New York City Comptroller, was represented by the New York City Corporation Counsel, Michael A. Cardozo by Erene George, Esq.
Upon the foregoing cited papers, the Court rules as follows on the defendant's motion to dismiss the action for the failure of plaintiff George Sommerfield ("plaintiff") to timely file a Notice of Claim as required by General Municipal Law § 50-e:
Plaintiff brought an action for alleged property damage sustained on August 14, 2008, in Flushing, Queens, due to a claimed overflow or street flooding from a New York City sewer. Plaintiff, a self-represented litigant, served a notice of claim on the City of New York ("City") on November 13, 2008 and filed a Summons and Endorsed Complaint on December 29, 2008. The Office of the Comptroller of the City of New York ("defendant") seeks dismissal of the action under Civil Practice Law and Rules ("CPLR") § 3211 (a)(7) or CPLR § 3212 on grounds that service of the notice of claim was one day late.
It is well-established law that filing a notice of claim is a condition precedent to filing a complaint against a public corporation ( Hwangbo v Nobles , 62 AD3d 949 ; Noel v Shahbaz, 274 AD2d 381, Maiello v. City of New York, 103 Misc 2d 1064; Board of Education Central District No. 1 — Fayetteville-Manlius School District et al., 38 AD2d 619 [3rd Dept 1971] affd, 30 NY2d 968). General Municipal Law ("GML") § 50-e (1) (a) provides that a notice of claim based upon a tort and against a public corporation must be filed within 90 days after the claim arose (except wrongful death actions). Here, the plaintiff filed the notice of claim one day after the statutory 90-day time period.
However, GML § 50-e (5) provides, in part, that "[u]pon application, the court, in its discretion, may extend the time to serve a notice of claim . . . "and that [i]n determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney . . . acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. . ."
In the matter herein, plaintiff included with his answer to defendant's motion a letter asking "forgiveness due to lack of clarity" regarding whether or not weekends are counted in the 90-day required filing period. The Court deems such letter to be an application to extend the time to serve the notice of claim, bearing in mind that while not required to do so, "[j]udges may . . . consider the self-represented status and capacity of the litigant when determining how to exercise matters of judicial discretion" and that "[w]hile pro se litigants have no greater legal rights, they are often afforded considerable latitude"( Cardona v. Cobarrubia , 21 Misc 3d 1126 (A) [2008] citing generally Child Welfare Administration v Jennifer A., 218 AD2d 694 [2d Dept 1995]).
Further, GML § 50-e (5) states that in considering whether to grant an extension for service of a notice of claim, "[t]he court shall also consider all other relevant facts and circumstances, including . . . "and proceeds to enumerate various examples such as whether the claimant was an infant, whether the failure to timely serve notice of claim was based on a justifiable reliance upon settlement representations made by an authorized representative of the public corporation or whether the delay substantially prejudiced the public corporation in preparing its defense. While the status of being a self-represented litigant is not one of the enumerated circumstances, the word preceding the list, "including," makes clear that the enumeration of conditions to be considered in granting an extension of the 90-day period for service of the notice of claim is not an exhaustive one.
Additionally, as noted herein, GML § 50-e (5) directs that the Court consider whether the public corporation ". . . acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter . . . "Since the notice of claim was served merely one day after the 90-day period (and from the defendant's exhibit, date-stamped by the City as received on that day), the Court finds that defendant had actual knowledge of the substance of plaintiff's claim "within a reasonable" time after the required time.
A potential barrier for the plaintiff in this matter, though, is GML § 50-e (7), which states that applications to file and serve a late notice of claim "under this section shall be made to the supreme court or to the county court: (a) in a county where the action may properly be brought for trial, (b) if an action to enforce the claim has been commenced, in the county where the action is pending, or (c) in the event there is no motion term available in any of the counties specified in clause (a) or (b) hereof, in any adjoining county." However, the application for an extension was made in the Civil Court of the City of New York, County of Queens, the court having jurisdiction over this matter.
In Arvelo v City of New York, 182 Misc 2d 101 (Civ Ct, Richmond County 1999), Judge Straniere granted the plaintiff's motion for leave to file a late notice of claim against the defendant, holding that the Civil Court had jurisdiction to entertain a motion to file a late notice of claim, and that moreover, GML § 50-e(7) is ". . . unconstitutional in that there is no rational basis for the disparity of treatment or the imposition of a greater burden of seeking redress in the Supreme Court for permission to file a late Notice of Claim on the litigants of Civil Court, and, more particularly, residents of New York City. The Court further finds no rational basis for the legislature's exclusion of the New York Civil Court in the statutory scheme and creation of this disparate burden on New York City residents as compared to the residents of other counties who have available the use of either the Supreme Court or County Court, the lower court having similar jurisdiction to that of the New York City Civil Court" ( Arvelo at 109; see also Shane v City of New York, 21 Misc 3d 1128[A] [Civ Ct, Richmond County 2008, Levine, J.])
In the case Maiello v City of New York, 113 Misc 2d 122 (App Term, 2nd 11th Jud Dists 1981), after trial in which there was a judgment entered in favor of two plaintiffs, the City moved to set aside the verdict for one of the plaintiffs based upon that fact that the second plaintiff's notice of claim was defective. On appeal, the Appellate Term held that pursuant to General Municipal Law § 50-e (7), trial Judges in courts other than Supreme or County Court could grant an oral motion made at the time of trial for subdivision 6 relief to correct or disregard a defective notice of claim. "To hold that the trial court was without power to grant the requested relief, and that plaintiff's only remedy, in the midst of the jury trial, was to seek a Supreme Court order permitting the Civil Court to disregard the defect in the notice of claim, would bring about a ludicrous result which the Legislature never intended" ( Maiello at 124).
GML § 50-i (1) (c) requires that any action or special proceeding ". . . against a city, county, town village, fire district or school district . . . for damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city, county, town, village, fire district or school district . . . "be brought ". . . within one year and ninety days after the happening of the event upon which the claim is based . . . "Also, GML § 50-e (5) requires that any extension for the service of a notice of claim not exceed the time limited for the commencement of the action.
In the case at bar, the plaintiff has applied for an extension before the expiration of the one year and ninety day statute of limitations period; however, if he is required to seek his relief in the Supreme Court, the statutory period will have passed (see Perez v City of New York, 133 Misc 2d 1083 [Sup Ct, New York County, 1986, Saxe, J]). In Perez, the plaintiff had timely filed a motion seeking to serve a late notice of claim in Civil Court prior to the elapse of the statutory time frame. The Civil Court dismissed the application with leave to renew, noting the application should have been brought in the Supreme Court. Nonetheless, when the plaintiff made its application to the Supreme Court, the late application was untimely and the claim was dismissed. "The most onerous results attend to the litigant who has commenced its action in the Civil Court, availed itself of the procedures and adhered to the rules of the Civil Court, and yet is compelled to seek a remedy in the Supreme Court" ( Arvelo at 105).Therefore, the Court denies the defendant's motion to dismiss the plaintiff's action, and finds that the defendant was apprised of this claim within a reasonable time after 90 days, and that there was no considerable prejudice to the defendant by the de minimis delay in the late filing of the notice of claim. The plaintiff's notice of claim dated November 13, 2008 will constitute the operative late notice of claim which the Court holds to be timely served nunc pro tunc as of November 12, 2008.
The parties are to proceed to trial on February 1, 2010. The defendant is directed to serve this Order with Notice of Entry.
The foregoing constitutes the Decision and Order of the Court.