Petitioner moves in this proceeding for leave to serve a late notice of claim, pursuant to the General Municipal Law (GML § 50-e).

The above-entitled action alleges property damage, economic loss, and pain and suffering due to the negligence of the defendant the City of New York (the City) and its agencies. This action arises out of an attack on petitioner's dog by an unleashed "pack of junkyard dogs" (the incident). It is alleged that, at the time of the incident, the attacking dogs were owned by non-party Harry Theodore (Theodore), and resided with him in a lot on 46th Street between 10th and 11th Avenues in Manhattan.

The petition alleges that, at approximately 8:00 a.m., on December 21, 2003, while petitioner's dog was being walked by petitioner's friend, three of Theodore's dogs came running out of the yard where they lived and viciously attacked petitioner's dog. Petitioner claims that, as a result of the attack, her dog suffered terrible life threatening injuries; petitioner was afraid to walk in her neighborhood; and petitioner sustained significant monetary damages due to hospital bills for her dog, and lost earnings.

Petitioner contends that, on the same day of the incident, she contacted numerous city agencies to put the City on notice of her claim, and to prevent further attacks by Theodore's dogs. She states that she was advised by these agencies that they did not handle "dog-on-dog" complaints, and that each agency referred her to another city agency.

Petitioner also claims that on December 22, 2003, one day after the incident, she called the Department of Health and Mental Hygiene (DOH) to file an official complaint, and was allegedly told that she could not file a written complaint, but could make a complaint over the telephone. Petitioner was given a complaint number by the operator, and was advised to call her police precinct, since DOH did not handle dog-on-dog complaints. Petitioner also contends that she filed another complaint with the Mayor's Office. [*2]

Thereafter, petitioner was allegedly told by an officer of the New York City Police Department (NYPD) that, although the NYPD was aware of complaints about Theodore's dogs, it did not handle dog-on-dog complaints. Petitioner states that she was similarly advised by an official of DOH that it had received prior complaints about Theodore's dogs and had investigated them. In October 2004, petitioner published a story in New York Magazine describing the subject incident and her efforts in trying to get city agencies to respond to her complaints. After the article ran in New York Magazine, petitioner was contacted by the Mayor's Office and, that afternoon, petitioner and representatives of the Mayor's Office visited the lot and viewed the dogs.^[FN1]

Petitioner filed a notice of claim on February 10, 2005, after the expiration of the statutory period of 90 days. She maintains that the only reason she did not file a written notice of claim earlier was due to the erroneous advice that she received from a DOH employee on December 22, 2003 that she could not do so. She argues that, although she did not provide written notice to the City within 90 days of the subject incident, the City had actual notice of the incident by virtue of the numerous complaints she filed with the City within 90 days of the incident.

GML § 50-e (1) (a) provides that a notice of claim be served within 90 days after a claim arises. GML § 50-e (5) gives the court broad discretion to grant an application to extend the time to serve a notice of claim against the City, upon consideration of various factors set forth in the statute, so long as the motion is made within one year and 90 days after the date of the occurrence (see Silbernagel v City of New York, 57 NY2d 691 [1982]; Bourguignon v City of New York, 157 AD2d 644 [2d Dept 1990]).

The proposed notice of claim alleges that the City was negligent, careless and reckless in failing to take any action to prevent the attack on petitioner's dog. The City argues that petitioner should not be permitted to serve a late notice of claim because she has failed to satisfy the enumerated factors set forth in the statute, and because there is no merit to her claim. The City contends that it cannot be held liable for petitioner's alleged injuries for merely failing to act for the plaintiff's protection, since it never undertook a special duty to plaintiff.

"While, as a general proposition, a court entertaining an application to serve a late notice of claim will not examine the merits, the motion is appropriately denied where the claim is 'patently meritless'" (Caldwell v 302 Convent Avenue Housing Development Fund Corp., 272 AD2d 112, 113-114 [1st Dept 2000]; Catherine G. v County of Essex, 3 NY3d 175 [2004]; Williams v City of New York, 290 AD2d 354 [1st Dept 2002]; Katz v Town of Bedford, 192 AD2d 707 [2d Dept 1993]).

A governmental body will not be liable for injuries to an individual resulting from negligence in the performance of a governmental function absent a special relationship between the municipality and the injured party (see Kircher v City of Jamestown, 74 NY2d 251, 255 [1989]; Cuffy v City of New York, 69 NY2d 255, 260 [1987]). A special duty between the municipality and an individual can arise where the municipality has assumed an obligation to [*3]protect a specific individual or a specific class from a specific danger, which protection is relied upon by the individual or the members of the class (Browne v Town of Hempstead, 110 AD2d 102 [2d Dept 1985]).

Further, in the absence of an affirmative act which causes an individual's injury, when a municipality acts in its governmental capacity for the protection of the general public, it will not be held liable for an individual's injury by the mere failure to furnish adequate protection, where no special duty exists (Spiegler v School District of City of New Rochelle, 39 Misc 2d 720 [Sup Ct Westchester County 1962], affd 19 AD2d 751 [2d Dept 1963], appeal denied 13 NY2d 600 [1964]).

Petitioner argues, inter alia, that the City affirmatively assumed an obligation to protect City residents from dangerous dogs by enacting NYC Administrative Code § 17-349 (the "Dangerous dog advisory board"). This local statute provides for the formation of a dangerous dog advisory board consisting of specified members, who shall meet once every four months to assess the regulations promulgated by the commissioner. Petitioner claims that the City never implemented the provisions of this statute.

It is undisputed that controlling stray animals is a governmental function (id.). However, municipal tort liability for violations of general statutory or regulatory obligations, where they are intended to protect the general public in a broad sense, are limited to individuals who can establish a special duty of care owed to him or her (Browne v Town of Hempstead, 110 AD2d at 105).

Here, notwithstanding petitioner's contentions to the contrary, no special duty was created by DOH's alleged investigation of Theodore's dogs prior to the incident, as there is no allegation that petitioner relied on this investigation to her detriment, nor is there any allegation of any direct contact between petitioner and the City prior to the incident (see Merced v City of New York, 75 NY2d 798, 800 [1990]).

Moreover, neither the City's alleged knowledge of complaints about Theodore's dogs prior to the incident, nor the City's alleged failure to comply with its general statutory obligation to form a "dangerous dog advisory board" create liability on the City's part, since the City's mere failure to act cannot impose liability where it assumed no special duty to petitioner.

Since petitioner has failed to establish a special duty owing to her from the City, and since petitioner has failed to allege any affirmative action of the City which resulted in her alleged injuries, she has failed to establish a sufficient predicate for imposing liability on the City (see Garrett v Holiday Inns, Inc., 58 NY2d 253, 262 [1983]). Thus, petitioner's motion to serve a late notice of claim is denied.

Accordingly, it is

ADJUDGED that the petition is denied, and the proceeding is dismissed.

DATED: June 22, 2005

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HON. WALTER B. TOLUB, J.S.C.