Opinion
Index No. 159190/2023
04-05-2024
In the Matter of the Application of Wesco Insurance Company AS SUBROGEE OF LITTLE ANN LLC FOR LEAVE TO SERVE AND FILE A NOTICE OF CLAIM, NUNC PRO TUNC, PURSUANT TO GENERAL MUNICIPAL LAW SEC. 50(E), Petitioner, v. New York City Department of Buildings, Respondent.
Derrevere Stevens Black & Cozad, New York, NY (Robert A. Stern and Douglas M. Allen of counsel), for petitioner. Hon. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Jessica Witkowski of counsel), for respondent.
Unpublished Opinion
Derrevere Stevens Black & Cozad, New York, NY (Robert A. Stern and Douglas M. Allen of counsel), for petitioner.
Hon. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Jessica Witkowski of counsel), for respondent.
GERALD LEBOVITS, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion for LEAVE TO FILE.
Petitioner, Wesco Insurance Company, seeks an order under General Municipal Law (GML) § 50-e (5) to extend the time to serve a notice of claim against respondent, the City of New York, for property damage allegedly suffered by petitioner's subrogor, Little Ann LLC. The application is denied.
Technically, petitioner's proposed notice of claim, and its petition in this proceeding, name the New York City Department of Buildings as the party against which relief is sought. Respondent argues that the Department of Buildings is not a separate legal entity under New York City Charter § 396, and that the proceeding must therefore be dismissed. This court disagrees. When a plaintiff has properly served the City of New York, and the Corporation Counsel has answered on behalf of defendant, naming a City department as defendant rather than the City itself is not a ground for dismissal. (See Rivera v New York City Dept. of Sanitation, 183 A.D.3d 545, 545 [1st Dept 2020].) Petitioner submitted an affidavit of service on the Office of the City Comptroller. (See NYSCEF No. 9.) That is proper service on the City. (See Silicato v Skanska USA Civil Northeast Inc., 112 A.D.3d 464, 464 [1st Dept 2013].) And the Corporation Counsel has appeared for respondent and opposed the petition. (See NYSCEF No. 13.)
GML § 50-e (5) provides that in determining whether to grant an extension, the "the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within" the 90-day statutory deadline for serving notices of claim. Petitioner has not shown that the City had actual notice of those facts in this case.
Petitioner's proposed claim arises from the April 2023 collapse of a parking garage in lower Manhattan. (See NYSCEF No. 3 at ¶ 2.) Petitioner alleges that its subrogor's property, located next door to the collapsed garage, was also harmed due to the collapse; and that this harm was proximately caused by the City's negligence in failing to inspect properly the garage. (See id. at ¶¶ 2-3.) Petitioner has shown only that the City was on actual notice of the damage to the garage-not damage to the adjoining property owned by the subrogor. None of the news articles submitted on this application (see NYSCEF No. 4) mention that adjoining property, much less damage to the property resulting from the garage collapse. And petitioner does not provide any other basis to believe that the City's awareness with respect to the garage would necessarily have extended to actual knowledge of injury to the adjoining premises. (See Braverman v City of White Plains, 115 A.D.2d 689, 690 [2d Dept 1985] [reversing grant of leave to file a late claim, when plaintiffs did not provide any evidence to support their assertion that defendant would have had actual notice of the underlying road defect].)
Petitioner's reliance on Strauss v New York City Transit Authority (195 A.D.2d 322 [1st Dept 1993]) is unpersuasive. (See NYSCEF No. 20 at 4.) In Strauss, petitioner slipped and fell on ice at a subway entrance. (See id. at 323.) The record reflected that the police officer who aided petitioner after her fall had also spoken with a Transit Authority officer to inform him of the dangerous icy condition that had caused petitioner's injuries. (See id. at 322-323.) The Court held that this information sufficed to put the City on actual notice of the facts constituting petitioner's claim. (See id.) Strauss thus stands for the proposition that where a municipal defendant timely receives actual notice of the would-be petitioner's injury and the allegedly actionable cause of that injury, the actual-notice requirement is satisfied. Here, on the other hand, petitioner has not shown that respondent received actual notice of the damage to its property in the first place-only of the conditions that petitioner now alleges to have caused the damage. That is not enough.
Petitioner also has not satisfied its initial burden under § 50-e (5) to show an absence of substantial prejudice to the City from petitioner's delay in serving a notice of claim. (See Newcomb v Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466 [2016].) Indeed, petitioner's opening papers do not even attempt to satisfy that burden. (See generally NYSCEF No. 1.) On reply, petitioner argues for the first time that given the City's knowledge of the garage collapse, "it had the ability to investigate the facts, and as such, it would not be prejudiced by Petitioner serving a notice of claim." (NYSCEF No. 20 at 6.) Again, though, the question is not what the City knew about the condition of the garage, but what it knew about the condition of the property owned by petitioner's subrogor. And, as respondent points out (NYSCEF No. 13 at 8-9), conditions on the site likely changed over the summer and fall of 2023 given the City's need, for example, to take steps enabling it to safely demolish the collapsed garage. (See Reisse v Nassau County, 141 A.D.2d 649, 651 [2d Dept 1988] [identifying the potential for prejudice when "the municipality did not have actual knowledge and there has been a change in the conditions which would prevent an accurate reconstruction of the circumstances existing at the time the claim arose"].)
Accordingly, it is
ORDERED that petitioner's application under GML § 50-e is denied, and the proceeding against respondent is dismissed; and it is further
ORDERED that respondent serve a copy of this order with notice of its entry on petitioner and on the office of the County Clerk (by the means set forth in the court's e-filing protocol, available on the e-filing page of the court's website, https://ww2.nycourts.gov/courts/1jd/supctmanh/E-Filing.shtml), which shall enter judgment accordingly.