Opinion
2014-03-25
Rafael ZAPATA, Plaintiff–Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant.
Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for appellant. Segal & Lax, New York (Patrick D. Gatti of counsel), for respondent.
Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for appellant. Segal & Lax, New York (Patrick D. Gatti of counsel), for respondent.
TOM, J.P., FRIEDMAN, SWEENY, SAXE, FREEDMAN, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered December 18, 2012, which granted plaintiff's motion for leave to file a late notice of claim against the New York City Housing Authority (NYCHA), unanimously reversed, on the law and the facts, without costs, and the motion denied.
In this action for personal injuries allegedly sustained by plaintiff when he was assaulted on premises owned by defendant NYCHA, plaintiff failed to establish that defendant had actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter or to demonstrate that defendant was not prejudiced by the delay ( seeGeneral Municipal Law § 50–e(5); Matter of Bailey v. City of N.Y. Hous. Auth., 55 A.D.3d 443, 866 N.Y.S.2d 155 [1st Dept. 2008] ). Plaintiff's counsel's averment that, upon a routine review of case files, it was discovered that a notice of claim had not been filed does not constitute a reasonable excuse for failing to timely serve the notice of claim ( see Matter of Santiago v. New York City Tr. Auth., 85 A.D.3d 628, 628–629, 925 N.Y.S.2d 500 [1st Dept. 2011] ).
While the absence of a reasonable excuse does not itself compel denial of the motion, as noted, plaintiff also failed to show that NYCHA acquired actual knowledge of the facts constituting his claim within 90 days, or a reasonable time thereafter ( see Matter of Bailey, 55 A.D.3d 443, 866 N.Y.S.2d 155). Even if NYCHA was aware that plaintiff reported an assault to the police during the statutory period, knowledge of the report does not constitute notice to NYCHA of plaintiff's intention to file a civil suit based on a claim of negligent security ( see Rivera v. New York City Housing Auth., 25 A.D.3d 450, 807 N.Y.S.2d 373 [1st Dept. 2006] ). Further, the “delay of more than six months between the alleged assault and the filing of the notice of claim undeniably compromised [NYCHA's] ability to identify witnesses and collect their testimony based upon fresh memories” ( id.).