Jones v. New York City Hous. Auth.

2025 NY Slip Op 30198(U)

• Court: New York Supreme Court, New York County
• Decided: January 3, 2025
• Docket: Index No. 450900/2016
• Status: Unpublished

Opinion

Jones v New York City Hous. Auth. 2025 NY Slip Op 30198(U) January 3, 2025 Supreme Court, New York County Docket Number: Index No. 450900/2016 Judge: Jeanine R. Johnson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 450900/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 01/16/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JEANINE R. JOHNSON PART 52-M Justice -------------------X INDEX NO. 450900/2016 DONAVAN JONES, 01/29/2024 MOTION DATE Plaintiff, MOTION SEQ. NO. 002 -v- NEWYORK CITY HOUSING AUTHORITY, CITY OF NEW DECISION + ORDER ON YORK MOTION Defendant. -------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 76, 77, 78, 79, 80, 81, 82,83,84, 85, 86, 87, 88,89, 90, 91, 92, 93, 94, 97, 98, 99,100,101,102,103,104,105,106,107, 108,109,110,111,112,113,114,115,116 were read on this motion to/for JUDGMENT - SUMMARY

Upon the foregoing documents and oral argument heard on August 21, 2024, Defendant,

New York City Housing Authority's (hereinafter "NYCHA") motion for summary judgment and

dismissal of the complaint pursuant to CPLR § 3212 is denied. Additionally, Plaintiffs cross-

motion to amend the Notice of Claim pursuant to GML § 50-(e)(S) and (6), nunc pro tune, is

granted.

To succeed on a motion for summary judgment, the moving party must make a prima

facie showing of entitlement to summary judgment as a matter of law by demonstrating the

absence of any material issues of fact. See generally Friends of Thayer Lake LLC v. Brown, 27

N.Y.3d 1039 (2016). Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824 (2014);

CPLR §3212(b). "If the moving party makes out a prima facie showing, the burden then shifts to

the non-moving party to establish the existence of material issues of fact which preclude

judgment as a matter oflaw." Jacobsen, 22 N.Y.3d at 833. If there are no material, triable issues

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of fact, summary judgment must be granted. See Sillman v Twentieth Century-Fox Film Corp., 3

NY2d 395 (1957).

GML § 50-(e)(2) requires, in relevant part, each notice of claim to "be in writing, sworn

to by or on behalf of the claimant, and shall set forth: (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." GML § 50-(e)(S) provides the framework to analysis an application for

leave to serve a late notice of claim and states, in relevant part, "in determining whether to grant

the extension 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...

and whether the delay in serving the notice of claim substantially prejudiced the public

corporation in maintaining its defense on the merits." See Gerzel v New York, 117 AD2d 549 (1st

Dept 1986). GML § 50-e(6) outlines the process to correct any mistakes, omissions, irregularities

or defects made in the notice of claim and states "at any time after the service of a notice of

claim and at any stage of an action or special proceeding to which the provisions of this section

are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of

claim required to be served by this section, not pertaining to the manner or time of service

thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the

court, provided it shall appear that the other party was not prejudiced thereby." See Matter of

Corwin v City ofNY, 141 AD3d 484 (1st Dept 2016).

NYCHA asserts that Plaintiffs failure to accurately identify the correct address in the

Notice of Claim and direction in which he was walking during his 50-H hearing constitute

untimely notice and require dismissal of the claim. Additionally, NY CHA in its opposition to

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Plaintiffs cross-motion to amend, contends it is prejudiced by the inability to investigate the

claim because work was performed on the subject sidewalk by Defendant, The City of New York

(hereinafter "the City"). Defendant, the City joins NYCHA's motion, adopting the same

arguments and also argues NYCHA failed to submit to evidence that the City is solely

responsible for performing any work or completed work at the subject location.

Plaintiff argues its Notice of Claim and 50-H testimony provided timely and adequate

notice based upon the images produced. Plaintiff further argues that Defendant-NYCHA

deliberately misread his testimony at the 50-H hearing, as the directional inquiry was in relation

to a bus stop not photographed. Plaintiff seeks to amend the error in the Notice of Claim

asserting the mistake was made in good faith and there is no prejudice as Defendant-NYCHA

was aware of the correct location from images provided with the original Notice of Claim.

Additionally, Plaintiff asserts Defendant-NYCHA only speculate investigation was inhibited and

fail to provide supporting evidence thereof.

This Court finds the Defendants motion for summary judgment is denied as they failed to

meet their prima facie burden. See Friends of Thayer Lake LLC, 27 N.Y.3d 1039; Jacobsen, 22

N.Y.3d at 833.This Court finds that the Plaintiff met its burden. Plaintiff demonstrated that the

incorrect address in the Notice of Claim was a mistake made in good faith; Defendant-NYCHA

had actual knowledge of the correct address; and there is no prejudice evident to Defendant-

NYCHA. Therefore, this Court determines it provident to exercise its discretion to grant the

application to amend nunc pro tune. See Matter of Corwin v City ofNY, 141 AD3d 484.

This constitutes the Decision and Order of the Court.

Accordingly, it is hereby,

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ORDERED that the Defendants, New York City Housing Authority and The City of New

York's motion for summary judgment seeking dismissal is denied; and it is further

ORDERED that Plaintiffs cross-motion to amend the Notice of Claim nunc pro tune is

1/3/2025 DATE ON, J.S.C.

~ CHECK ONE: CASE DISPOSED NO A

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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