[*1]
| Garcia v New York City Bd. of Educ. |
| 2009 NY Slip Op 51675(U) [24 Misc 3d 1230(A)] |
| Decided on July 28, 2009 |
| Supreme Court, Richmond County |
| Maltese, J. |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Supreme Court, Richmond County
Rosa Garcia, Petitioner
against
New York City Board of Education and THE NEW YORK CITY
DEPARTMENT OF EDUCATION, Respondent
|
0080076/09
Plaintiff is represented by Decolator Cohen & DiPrisco, LLP.
Defendants are represented by Michael Cardozo, Corporation Counsel.
Joseph J. Maltese, J.
Rosa Garcia ("Garcia") petitions the Court for leave to serve and file late
notice of claim, nunc pro tunc, against the defendants New York City Board of
Education and the New York City Department of Education (the "Board and Department of
Education") pursuant to New York General Municipal Law ("Gen Mun Law") § 50-3 (5).
Garcia argues that the Board and Department of Education had actual knowledge of the incident,
and that the delay of less than 30 days did not unfairly prejudice the ability of the Board and
Department of Education to investigate the incident. Additionally, if actual notice was
mistakenly provided to the Police Department instead of to the Board and Department of
Education, this would be an excusable error. Garcia's petition is granted.
Facts
Garcia was employed by the New York City Police Department as a School Safety
Officer at P.S. 20, located at 161 Park Avenue, Staten Island, New York. On September 19,
2008, Garcia was injured descending a stairway in the school at a time prior to school dismissal.
The Supervisor of School Security, Carmelo Rosa, filled out an Injury and Illness Incident
Report [*2](From [sic] SH 900.2 (for NYPD use)) (the
"Report") on the same day.[FN1] The report detailed the incident by indicating
that Garcia slipped at the second level of a stair case with two levels that are described as being
"steep."[FN2] The form
further records that Garcia suffered three broken bones in her left foot.[FN3] On the face of this document are the words
"...these forms help the employer and PESH [Public Employee Safety and Health Bureau]
develop a picture of the extent and severity of work-related incidents."[FN4]
On January 8, 2009, Garcia retained legal counsel. Garcia's counsel submitted a
notice of claim with exhibits on January 16, 2009. Petition for Leave to Serve and File Late
notice of claim, nunc pro tunc, was filed on March 6, 2009.
Discussion
I. The New York General
Municipal Law § 50-eThe Gen Mun Law § 50-e (5) provides
in part:Upon application, the court, in its discretion, may extend the time to serve a notice of
claim...In determining whether to grant the extension, the court shall consider, in particular,
whether the public corporation ... acquired actual knowledge of the essential facts constituting
the claim ... or within a reasonable time thereafter. The court shall also consider all other relevant
facts and circumstances, including: ... whether the claimant in serving a notice of claim made an
excusable error concerning the identity of the public corporation against which the claim should
be asserted; and whether the delay in serving the notice of claim substantially prejudiced the
public corporation in maintaining its defense on the merits.[FN5]
Therefore, Garcia may show that actual notice was had by the municipal corporate
identity; that a mistake was made in the corporate identity notified; or that there is a lack of
prejudice against the governmental entity being sued occasioned by the delay in notification; or
[*3]some combination thereof.[FN6] No one factor is dispositive,[FN7] and the court has "broad
discretion to grant an extension after considering relevant facts and circumstances."[FN8]
Gen Mun Law 50-e (1)(a) requires that a notice of a claim, founded upon a tort and
against a public corporation, to be filed within 90 days after the claim arises except in wrongful
death actions.[FN9] When a
notice of claim is filed after the 90 day time limit, the court may grant leave to file a late notice
of claim. The Court of Appeals has stated in "determining whether to grant such permission [to
file a late notice of claim] the court [be] permitted to consider all relevant circumstances [
internal citations deleted]."[FN10] Therefore, wide discretion is available to
apply justice according to particularized facts when granting leave to file a late notice of claim.
In opposition, the respondent argues that the petitioner failed to satisfy the above
criteria for granting leave to file a late notice of claim. The purpose of a notice of claim is to
allow "an adequate opportunity to investigate the circumstances surrounding the accident and to
explore the merits of the claim while information is still readily available."[FN11] The respondent argues that
the petitioner has not met the burden of showing a lack of prejudice against the Department of
Education. Contrariwise, petitioner's submissions suggest there should be no prejudice due to
filing a late notice of claim. Respondent further states that petitioner has not offered an excuse
for a delay. Excuse is not an absolute requirement and the absence of any excuse may not
necessarily prevent the granting of leave to make late notice if it is balanced against actual
knowledge by, or the lack of prejudice to the municipal corporate entity.[FN12]
[*4]
The plaintiff argues she has submitted actual
notice to the Department of Education by the completion of the Report, a form created by a
Supervisor of School Security, and that Garcia may therefore be excused a mistake in actual
notice provided to the wrong public entity,. By presenting the Report,[FN13] and the proposed notice of claim,[FN14] Garcia makes adequate
representation that the Department of Education is not unfairly prejudiced in the ability to
investigate and analyze Garcia's claims.
II. The Department of Education had Actual Notice of the Incident
In determining whether to grant leave to file a late notice of claim, great weight is
given to the municipal entity having actual notice of the claim.[FN15] The Department of Education had actual
knowledge of Garcia's incident and injuries. A Supervisor of School Security notified the
Department of Education with a Report (Form SH 900.2 (for NYPD use)). The report states,
"these Forms help the employer and PESH develop a picture of the extent and severity of
work-related incidents."[FN16]
When a janitor or office workers were present at the time and place of an alleged
incident, the Appellate Division, Second Department held that the mere presence of these
employees is not adequate to provide actual knowledge.[FN17] Mere speculation that an incident report was
completed is not actual knowledge.[FN18] However, investigation of an incident by the
Police Department may provide actual knowledge, if "the Police Department had all essential
facts in its possession"; and if, under the circumstances of a case, the knowledge may be imputed
to the municipal corporation.[FN19] While the instant case represents a personal
injury rather than police action such as an arrest, the information was gathered by the Supervisor
of School Security for the purposes of Garcia's employer.
[*5]
The Appellate Division, Second Department has
"held that where a municipal employee was allegedly injured in the course of his employment
and thereafter applied for leave to serve a late notice of claim, the filing of an accident report
with the employee's agency or department imported actual knowledge to the municipality which,
in conjunction with other circumstances present, warranted the granting of leave."[FN20] In this instant case, the
Department of Education should have been informed by the Report completed by the Supervisor
of School Security.
"[W]hat satisfies the statute [Gen Mun Law§ 50-e (1)] is not knowledge of the
alleged wrong, but rather, knowledge of the nature of the claim."[FN21] Actual knowledge must clarify "the
connection between the accident and the condition complained of."[FN22] A proper notice of claim requires: "(1) the
name and post-office address of each claimant, and of his attorney, if any; (2) the nature of the
claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the
items of damage or injuries claimed to have been sustained so far as then practicable but a notice
with respect to a claim against a municipal corporation other than a city with a population of one
million or more persons shall not state the amount of damages to which the claimant deems
himself entitled."[FN23]
The Report recorded the circumstances of the incident including (1) Garcia's name and address;
(2) the alleged cause of injuries claimed; (3) the time, place, and manner in which the claim
arose; and (4)the nature of the injuries.[FN24] The name of the Garcia's attorney is not
specified within the Report, but that should not impede acquisition of knowledge of the nature of
the claim.
Respondent relies upon the need for the public corporation to "have knowledge of
the facts that underlie the legal theory or theories on which liability is predicated in the notice of
claim."[FN25] In
Felice v. Eastport/South Manor Cent. School Dist., a youthful gymnast made oral
representations to a coach that students who were to catch her were inadequately trained. The
coach failed to make changes and th youth was injured at a school event. The plaintiff in
Felice v. Eastport/South Manor Cent. School Dist. submitted that the oral representations
to the coach were actual notice. The Appellate Division, Second Department disagreed because
the information in a report the school had received had inadequate specificity of "essential facts
constituting the claim."[FN26] Appellate Division, Second Department
further clarified, "[e]ven [*6]where the public corporation does
not have actual knowledge of the essential facts constituting the claim, it may in some cases not
be difficult for the claimant to establish the absence of material prejudice."[FN27] In the instant case, the details
of the claim were listed by a Supervisor of School Security and any deficiency could have been
researched by the school upon its evaluation of the form.
Distinctions between New York City municipal corporations have been made more
complicated since the 2002 amendments to the Education Law providing for increased mayoral
control while limiting the power of the Board of Education. Despite political changes, the Board
of Education may still be regarded as a distinct public entity.[FN28] "The legislative changes do not abrogate the
statutory scheme for bringing lawsuits arising out of torts ... and the City cannot be held liable
for those alleged torts."[FN29] Therefore, it is not necessary to file and
serve additional notice of claim against the City of New York in this instant case.
The Report prepared by Garcia's Supervisor of School Security was for the purpose
of helping Garcia's employer and the public employee safety bureau develop a picture of the
extent and severity of work-related incidents. The Report did so with particularity of the features
of the incident including the specific defect in the stairs. This court finds that actual notice was
provided to the Department of Education.
III. Lack of Actual Notice to the Department of Education Was Excusable
Error
The Report provided particularized information regarding the incident of September,
19, 2008.[FN30]
Defendant argues that the accident report was not submitted to nor generated by the Department
of Education. "[E]xcusable error concerning the identity of the public corporation against which
the claim should be asserted" is grounds for permitting leave to serve a late notice.[FN31] "An error in serving the
wrong governmental entity with a notice of claim may be excused if remedied promptly after
discovering the mistake."[FN32] Assuming that actual notice was made
available to the wrong municipal entity, the petitioner should not be without recourse, if the
[*7]error is promptly corrected. The petitioner made an error by
providing the Police Department with an actual notice of a claim, as opposed to serving a notice
of claim to the Department of Education. The accident report was completed by the Supervisor
of School Security, and was for the purpose of helping "the employer and PESH develop a
picture of the extent and severity of work-related incidents."[FN33] A reasonable person might conclude from
this wording that the Report serves to inform or advise the municipal corporation of the
particulars of an incident.
Whether for statutory analysis,[FN34] for zoning resolutions or for agency
determinations, the Court of Appeals looks to the plain meaning to establish the import of a
writing.[FN35] Plain
meaning may also be applied to printed explanations on the face of a government report: in this
instance the Report filled out by the Supervisor of School Security. The Appellate Division,
Second Department regards a writing as unambiguous if it has only a single meaning.[FN36] Therefore, the plain meaning
and unambiguous purpose of the Report completed by the petitioner's supervisor was to inform
the petitioner's employer and PESH of facts surrounding the work-related incident. A reasonable
person may conclude from that wording that the Department of Education had actual notice of
the incident that occurred on September 19, 2008.
The Department of Education avers that the Report was made to the Police
Department and not to the Department of Education. Because the petitioner filed the Report with
a person titled as the Supervisor of School Security, a reasonable person would assume the
individual is in a supervisory role of security for the school system. Hence, it is reasonable that
Garcia accepted that a "Supervisor of School Security" completing the report represented the
school in which the incident occurred, and therefore represented the Department of Education. If
an error sprang from this assumption, it must be the essence of excusable error in actual notice of
the wrong government entity. In any event, the error was corrected within 30 days by the
submission of a formal notice of claim, and within 90 days by submission of a petition for leave
to file a late notice of claim.
The error in this case is one of serving the wrong entity with an actual notice rather
than of serving the wrong entity with a notice of claim. If a notice of claim was mistakenly
submitted to the Police Department, it would be an excusable error.[FN37] If actual notice was mistakenly [*8]submitted to the Police Department, instead of to the Department of
Education, it should be an excusable error, if it was corrected promptly.[FN38] Reliance upon an excuse for
actual notice in error should be regarded similarly to reliance upon an excuse for notice of claim
made in error. This Court finds that actual notice to the Police Department instead of to the
Department of Education constituted an "excusable error concerning the identity of the public
corporation against which the claim should be asserted."[FN39]
IV. Leave to File a Late Notice of Claim Is Not Prejudicial
A distinction is to be made between filing a late notice of claim and requesting relief
from late filing. A leave to file a late notice of claim must be requested within one year and 90
days of an incident and prior to commencement of an action springing therefrom.[FN40] The incident occurred
September 19, 2008. The petitioner filed a Notice of Claim on January 16, 2009, which is 119
days from the date of the accident, or 29 days beyond the maximum of 90 days specified to file a
Notice of Claim.[FN41]
The petition for leave to file a late notice of claim, nun pro tunc, was filed on March 6,
2009, which is well within the limit of time for such a petition.
Requiring timely notice of claim allows a government entity to "assure the city an
adequate opportunity to investigate the circumstances surrounding an accident and to explore the
merits of the claim while information is readily available;"[FN42] and to "protect a public corporation against
stale or unwarranted claims and to enable it to investigate claims timely and
efficiently."[FN43] The
span of time that would per se preclude investigating merits of a claim and protect
against untimely, stale claims is variable and frequently is based upon other considerations in
conjunction with the mere passage of time. The clearest expressions of timeliness might be found
among instances when there was no notice, neither actual notice or a faulty notice of claim, and
[*9]yet no prejudice due to passage of time was determined.
The Appellate Division, Second Department has evaluated this contingency. In
Matter of Gelish v. Dix Hills Water District, actual notice was received less than one
month after the permitted ninety day span in which it is permissible to present a notice of claim,
which the Appellate Division, Second Department found to represent a "minimal delay [with]
lack of substantial prejudice."[FN44] In a separate instance the actual gap between
the occurrence of an incident and time notice was made was not specified, but notification within
"a reasonable time" permitted granting of leave to file a late notice of claim.[FN45] Six days is also within a time
span not felt to be prejudicial to a municipality.[FN46]
Respondent argues that petitioner had a burden of establishing the Department of
Education were not prejudiced by a late notice of claim.[FN47] Respondent further argues that petitioner
failed to meet that burden because the Department of Education were not advised of litigation
despite the Report and despite the proposed notice of claim. Respondent argues that it could not
investigate the conditions surrounding the incident while the conditions remained unchanged.
Firstly, The Report was ipso facto an investigation into the incident. Respondent relies
upon the Appellate Division, Second Department's requirement that "notice should provide a
sufficient basis for the municipality to conduct an investigation while the facts surrounding the
incident are fresh."[FN48]
Secondly, in the instant case, the physical condition of the stairs is stable and will not change
within any reasonable period of time. No witnesses are relied upon. It would be improbable that
the basic condition of the stairway would appreciably change from the time of the accident,
through the taking of post accident photographs,[FN49] and until the present.
The Appellate Division, Second Department has also examined the nature of the
information contained within a proposed notice of claim that would allow leave to file a late
notice of claim. If the information within the proposed notice of claim suggests the municipal
corporation will not be prejudiced, leave to file late notice of claim may be granted. When an
[*10]alleged defective condition of a sidewalk was of long
duration, a delay of five weeks was termed a "short delay [without] "substantial prejudice to the
City in defending the action on its merits."[FN50] A proposed notice of claim of adequate
specificity if submitted with an application may cure a delay in filing a notice of claim if it is
"sufficiently specific to assure the appellant a reasonable opportunity to conduct a full and
effective investigation regarding the petitioners' claim."[FN51] A notice of claim served eight days late
contained "sufficient allegations to fasten liability' on the county"[FN52] permitting late notice to be filed. Where
medical records were available and a physician witness was employed and available for
questioning, late notice of claim could be permitted.[FN53]
In the instant case, the petitioner alleges the stairs are defective; provides
photographs of the stairs; and specifies that there is a "failure to equip stairs with non skid
materials or other traction devices."[FN54] Any arguable delay the Department of
Education endured is not adversely prejudicial. There is no evidence that the condition of the
stairs at this time has changed from the time petitioner alleges she had her accident. The relative
permanence of the underlying alleged defect in the stairs is comparable to that of the sidewalk in
Irizarry.[FN55]
The stairs may be examined at any time, and the essentials of the evidence remain available for
inspection by the Department of Education. Although the Department of Education protest that
the delay in filing a notice of claim is prejudicial, this Court finds that there is no unfair
prejudice against the Department of Education.
Conclusion
Discretion to grant
leave to file a late notice of claim may be founded upon one or a combination of: 1) actual notice
of a claim by the governmental entity; 2) an excuse, or mistake in notification of the wrong
municipal entity; or 3) the lack of actual prejudice against the governmental entity. Firstly, the
Department of Education had or should have had actual notice and knowledge of the incident
through the Report filed by their Supervisor of School Security. Furthermore, even if it is
accepted that actual notification had been mistakenly and in error given [*11]to the New York Police Department instead of the Department of
Education, The Gen Mun Law §50-e (5) forgives a mistake and error in notice of claim
delivered to the wrong department. Public policy must favor a congruent forgiveness in order to
file a late notice of claim for those, who in error, mistakenly believe actual notice has been
provided, but to the wrong municipal agency.
Next, it is not necessary to file and serve notice of claim against the City of New
York. Finally, this claim does not depend upon individual memories or transitory individuals
whose addresses are unknown. The stairs and stairway are available for inspection in their
pre-accident condition until the Board of Education or the Department of Education make
physical alterations. Hence, there is no prejudice caused by filing a late notice of claim.
Accordingly, it is hereby:
ORDERED: that the petitioner Rosa Garcia's petition to file and to serve a late
notice of claim, nunc pro tunc as of January 16, 2009, against the respondents New York
City Board of Education and the New York City Department of Education is granted in its
entirety. Copies of the previously filed Notice of Claim shall be attached to a copy of this order
and shall be served upon the New York City Board of Education and the New York City
Department of Education within 20 days of notice of entry of this order.
ENTER,
DATED: July 28, 2009
Joseph J. Maltese
Justice of the Supreme Court
Footnotes
Footnote 1:Petitioner's Notice of Petition,
Exhibit "C".
Footnote 2:Id.
Footnote 3:Id.
Footnote 4:Id.
Footnote 5:Gen Mun Law § 50-e (5).
Footnote 6:Gen Mun Law § 50-e (5);
Welch v. New York City Housing
Auth., 7 AD3d 805, 806 [2d Dept 2004]; and Pruden v. New York City Board of
Ed., 235 AD2d 426 [2d Dept 1996].
Footnote 7:Jordan v. City of New York, 41 AD3d
658, 659 [2d Dept 2007]; Matter of Dell'Italia v. Long Isl. RR Corp, 31 AD3d 758,
758-9 [2d Dept, 2006]; and Matter of Morris v. County of Suffolk, 58 NY2d 767, 769
[1982].
Footnote 8:Matarrese v. New York City
Health and Hosp. Corp., 215 AD2d 7,13 [2d Dept 1995].
Footnote 9:Gen Mun Law § 50-e (1)
(a).
Footnote 10:Beary v. Rye, 44
NY2d 398, 311 [1978].
Footnote 11:Caselli v. New York,
105 AD2d 251, 252 [2d Dept 1984]; quoting Teresta v. New York, 304 NY 440, 443
[1952]; see also Matter of Portnoy v.
City of Glen Cove, 50 AD3d 1041, 1042 [2d Dept 2008]
Footnote 12:Catterson v. Suffolk County Dept of
Health Services, 49 AD3d 792, 794 [2d Dept 2008]; Matter of March v. Town of Wappinger, 29 AD3d 998, 999 [2d
Dept 2006]; and Alvarenga v. Finlay, 225 AD2d 617, 618 [2d Dept 1996].
Footnote 13:Petitioner's Notice of
Petition, Exhibit "C".
Footnote 14:Petitioner's Notice of
Petition, Exhibit "A".
Footnote 15:Morris v. County of
Suffolk, 88 AD2d 956 [2d Dept 1982], aff'd by 58 NY2d 767 [1982].
Footnote 16:Petitioner's 1, Exhibit "C".
Footnote 17:Matter of Smith v.
Baldwin Union Free School District, 2009 NY Slip Op 5351, 3 [2d Dept 2009]; and Matter of Bruzzese v. City of New
York, 34 AD3d 577, 578 [2d Dept 2004].
Footnote 18:Matter of Bruzzese v.
City of New York, 34 AD3d at 578.
Footnote 19:Nunez v. City of New
York, 307 AD2d 218, 220 [1st Dept 2004].
Footnote 20:Casselli v. New
York, 105 AD2d at 256.
Footnote 21:Pico v. City of New York, 8 AD3d
287, 288 [2d Dept 2004].
Footnote 22:Shapiro v. County of
Nassau, 208 AD2d 545 [2d Dept 2009].
Footnote 23:Gen Mun Law § 50-e
(2).
Footnote 24:Petitioner's 1, Exhibit "C".
Footnote 25:Felice v. Eastport/South Manor Cent.
School Dist., 50 AD3d 138, 147 [2d Dept, 2008].
Footnote 26:Id. at 150.
Footnote 27:Id. at 153.
Footnote 28:Gonzalez v.
Esperanza, 2003 US Dist LEXIS 13711, *5 [SD NY 2003].
Footnote 29:Perez v. City of New York, 41 AD3d
378, 379 [1st Dept 2007].
Footnote 30:Petitioner's Notice of
Petition, Exhibit "C".
Footnote 31:Gen Mun Law§ 50-e.
Footnote 32:Ruffino v. City of New York, 57
AD3d 550, 551 [2d Dept 2008].
Footnote 33:Petitioner's Notice of
Petition, Exhibit C.
Footnote 34:Tall Trees Constr. Corp.
v. Zoning Bd. of Appeals, 97 NY2d 86, 91 [2001].
Footnote 35: Raritan Dev. Corp. v.
Silva, 91 NY2d 98, 100 [1997].
Footnote 36:Geothermal Energy Corp. v. Caithness
Corp., 34 AD3d 420, 423 [2d Dept 2006].
Footnote 37:Gen Mun Law§ 50-e
(5).
Footnote 38:Ruffino v. City of New York, 57
AD3d 550, 551 [2d Dept 2008].
Footnote 39:Gen Mun Law§ 50-e
(5).
Footnote 40:Gen Mun Law § 50-e
(5); Scantlebury v. New York City Health and Hospitals Corporation, 4 NY3d 606, 608
[2005]; Camarella v. East Irondequoit Central School Board, 34 NY2d 139, 141 [1974].
Footnote 41:Gen Mun Law § 50-e
(1)(a).
Footnote 42:Teresta v. New
York, 304, 440, 443 [1952]; Sandak v. Tuxedo Union School District, 308 NY 226,
232 [1954]; Markotsis v. Town of Oyster Bay, 262 AD2d 451 [2d Dept 1999].
Footnote 43:Heiman v. New
York, 85 AD2d 25, 27 [1st Dept 1982], Light v. County of Nassau, 187 AD2d 720
[2d Dept 1992].
Footnote 44:Matter of Gelish v. Dix Hills Water
District, 58 AD3d 841 [2d Dept 2009].
Footnote 45:Bussey v. City of New York, 50 AD3d
938, 939 [2d Dept 2008].
Footnote 46:Lossino v. New York
City Transit Auth., 264 AD2d 383, 384 [2d Dept 1999].
Footnote 47:Felice v. Eastport/South
Manor Cent. School Dist. at 151, supra; Jordan v. Department of Education of New York
at 658, supra.
Footnote 48:Aviles v. City of New
York, 202 AD2d 530, 531 [2d Dept 1994].
Footnote 49:Petitioners Notice of
Petition, Exhibit A.
Footnote 50:Irizarry v. City of
Yonkers, 193 AD2d 746 [2d Dept 1993].
Footnote 51:Tarnaras v. Farmingdale
Union Free School District, 205 AD2d 545 [2d Dept 1994].
Footnote 52:Fritsch v. Westchester
County DOT, 170 AD2d 602 [2d Dept 1991].
Footnote 53:Leone v. County of
Nassau, 225 AD2d 776 [2d Dept 1996].
Footnote 54:Petitioner's 1 Exhibit "A".
Footnote 55:Irizarry v. City of
Yonkers, 193 AD2d at 746.