Ortiz v. New York City Hous. Auth.

2024 NY Slip Op 34287(U)

• Court: New York Supreme Court, Kings County
• Decided: December 3, 2024
• Docket: Index No. 519457/2024
• Status: Unpublished

Opinion

Ortiz v New York City Hous. Auth. 2024 NY Slip Op 34287(U) December 3, 2024 Supreme Court, Kings County Docket Number: Index No. 519457/2024 Judge: Kerry J. Ward 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. 519457/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/04/2024

Supreme Court of the State of New York Index Number 519457/2024 County of Kings Seq.001 Calendar No. 39

PRESENT: DECISION/ORDER HON. KERRY J. WARD, A.J.S.C. Recicaiion. as required by CPLR §2219 (a). of the papers considered in !he review of this Motion:

Part 3 NYSCEF Docs, Numbered Notice of Motion/Order to Show Cause and Affidavits Annexed.. . ... 2-10 ERROL ORTIZ, Answering AJlldavils . . . . . . ll......_ Replying Allidavits. .,,.~ Petitioner, Exhibits. - Yill:_ Other. . . , V...ar.__ -against-

THE NEW YORK CITY HOUSING AUTHORJTY,

Respondent.

Upon the papers before the Court, and having heard oral argtµ11ent,

It is hereby ORDERED as follows:

Petitioner's motion for leave to serve and file a Late Notice of Claim against Respondent

pursuant to General Municipal Law § 50-e(5) is DENIED.

Background and Procedural Historv

Petitioner Ortiz moves for leave to serve and file a Late Notice of Claim against

Respondent The New York City Housing Authority (hereinafter, NYCHA). This is a claim to

recover damages for serious injuries sustained as a result of an accident which allegedly occurred

on November 7, 2023, at approximately 11: 15AM, at a construction project at the Ingersoll

Houses located at 143-151 Navy Walk, Building 24, Brooklyn, New York. The premises is

owned by the Respondents. On the date of the alleged accident, Petitioner was a Local 1 Union

member employed by S&N Builders as a bricklayer and shop steward. The accident allegedly

nccurred while Petitioner was installing waterproofing on the roof of the building. While

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Petitioner was traversing the roof, he allegedly stepped on loose nail debris with his right foot

which punctured his boot. It caused him to roll his right ankle- and fall. The accident was

immediately reported to Petitioner's S&N Builders supervisor, ,an immediate investigation was

performed, and an [!Ccident report was prepared by S&N Builders (Exhibit B, NYSCEF Doc. 5).

There is no indication in the record that this report was submitted to NYCHA at any time.

Petitioner alleges that Respondent, as owner and operator of the subject property, violated

New York Labor Laws §§ 200, 240(1) and 241 (6). Petitioner also alleges Respondent violated

New York State Industrial Code, including~ but not limited to, § 23-1 (Petitioner 1· Affirmation in

Support, NYSCEF Doc. 3).

According to Petitioner's affirmation, immediately following the accident, Petitioner

went from the scerie of the accident to Woodhull Hospital, where he complained of right ankle

and right foot pain. Petitioner was examined by the emergency room physicians, and a CAT scan

was conducted. It is noted that in the papers before the Court, there is a discrepancy as to what

Petitioner's diagnosis was upon his release from the hospital. In his Petition, Mr. Ortiz states that

he was told that he had sprains and strains (Petition, NYSCEF Doc. 1). In contrast, in the

affirmation in support filed by Petitioner's attorney, it states, "Petitioner was not told that he had

sprains and strains." (Petitioner 1· Affirmation in Support, NYSCEF Doc. 3).

Following the accident, Petitioner returned to work on light duty. As time passed, the pain

in Petitioner"s right ankle conlinued to increase and he consulted Dr. Kyong Kim in May of

2024. Dr. Kim examined him and performed an MRJ of his right foot. The MRI revealed that

Petitimier had a right ankle fracture. Petitioner testified that he has been unable to work since

May of2024 (Petition, NYSCEF Doc. I).

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Petitioner alleges that the reason a timely Notice of Claim was not .filed against the

Respondent is because in relying on Woodhull Hospital's diagnosis, Petitioner thought the ankle

was sprained and strained. It was not until May 2024 that Petitioner was diagnosed with a right

ankle fracture, well after the 90-day requirement to file a Notice of Claim (Petition, NYSCEF

Doc. 1).

General Municipal Law§ 50-e(S)

The General Municipal Law allows for the exercise of considerable discretion in

determining whether to permit the service of a late notice of claim. In exercising its discretion,

the court is to consider 3 prongs: (1) whether the petitioner has a reasonable excuse for the

failure to serve a timely notice of claim, (2) whether the municipality acquired actual notice of

the essential facts of the claim within 90 days after the claim arose or within a reasonable time

thereafter, and (3) whether the delay would substantially prejudice the municipality's maintaining

its defense on the merits (see General Municipal Law§ 50--e[S]; Alvarenga v. Finlay, 225

A.D.2d 617, 617, 639 N. Y.S.2d 115, 116 [1996]).

With regard to the first prong of General Municipal Law § 50--e(S), Petitioner's

reasonable excuse for filing a late Notice of Claim is that he was not aware that his right ankle

was fractured until May 2024., and thus did not retain counsel until 7 months after his accident.

As to the second prong, while no one factor is determinative (see JB. v. Singh, 172

A.D.3d 1291, 99 N.Y.S.Jd 673; Matter ofLawhorne v. City a/New York, 133 A.D.3d 856, 20

N.Y.S.3d 155), the question of whether actual knowledge was timely acquired is considered to be

the most important factor (Catania v. City of New York, 188 A.D.3d 1041, 1042, 134 N.Y.S.3d

421, 422 [2020]). With regard to the second prong, Petitioner fails to make any argument with

regard to NYCHA's actual notice of the essential facts of the claim. In Bhargava v. City ofNew

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fork, "the petitioner also failed to demonstrate that the respondent, the City of New York,

obtained timely, actual knowledge of the essential facts constituting the claim. The incident

report prepared by the City's Department of Parks and Recreation on the day of the accident did

not provide the City with actual notice of the essential facts constituting the petitioner's claim

that the City was negligent in allowing the boardwalk upon which the petitioner allegedly fell

and sustained injmies to be operated, managed, controlled, and maintained in a dangerous and

hazardous condition'' (Bhargava v. City ofNew fork, 130A.D.3d 819, 820, 13 N.YS.3d 552, 553

[2015]). Similarly, in Kuterman v. City ofNew York, although the petitioner contended that the

City acquired actual knowledge of the subject incident by virtue of a police accident report made

by a police officer at the scene of the accident, the Court held tlwt the City of New York did not

acquire- timely, actual knowledge of the essential facts constituting the petitioner's claim.

The papers before the Court provide no evidence that the accident was reported to

NYCI-IA so as to provide actual knowledge of the essential facts constituting the claim within the

statutory period or a reasonable time thereaHer. Fmiher, for a report to provide actual knowledge

of the e·ssential facts, one must be able to readily infer from that repo1t that a potentially

actionable ,vrong had been committed by the public corporation (Kuterman v. City of New Yi.)rk,

121 AD.3d 646,647,993 N.Y.S.2d 361,363 [2014]). The Court finds that it could not be

deduced that a potentially actionable wrong had been committed by NYCHA upon review of the

accident repo1t. Thus, the second prong of the relevant General Municipal Law is not satisfied, as

Petitioner did not establish that they provided Respondent with actual notice of the essential facts

of their claim.

With regard to the third prong, there is a shifting burden of proof in demonstrating that

late service of a notice of claim substantially prejudices a municipality or public corporation. "A

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petitioner has the initial burden of showing that the late notice will not substantially prejudice the

municipality or public corporation ... Such a showing need not be extensive, but the petitioner

must present some evidence or plausible argument that supports a finding of no substantial

prejudice. Once this initial showing has been made, the municipality or public corporation must

respond "with a particularized evidentiary showing" that it will be substantially prejudiced if the

late notice is allowed" (N. F v. City ofNew York, 161 A.D.3d 1046, l048, 77N.Y.S.3d 712, 715

[2018]).

In Shumway, while the court, in weighing all of the appropriate factors, providently

exercised its discretion in denying the petition in its entirety, the cow-t nonetheless found that the

petitioner presented a plausible argument that late notice would not substantially prejudice the

respondent because alleged icy conditions were highly transitory, such that respondent would

have been in the same position regarding any investigation even if the notice of claim had been

timely served (See Shumway v. Town (?{Hempstead, 187 A.D.3d 758, 759, 133 N.Y.S.3d 25, 27

[2020]).

Similarly in the instant action, petitioner contends that the loose nail debris on the roof

was a transitory condition, such that even if the Respondent had been served with a timely

Notice of Claim, they would not have had an opportunity to investigate the condition that caused

Petitioner's accident. Therefore, their contention is that the delay would not substantially

prejudice the municipality in maintaining its defense on the merits. (P/a;nt{ff's Affirmation in

Support, NYSCEF Doc. 3). The Court finds that petitioner has not presented a plausible

argument that would support a finding of no substantial prejudice. Thus, the burden of proof has

not shifted to respondent to demonstrate that they have been substantially prejudiced.

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Nonetheless, the Court would note that in response, NYCHA argues that it has been

prejudiced by the late notice because given timely notice of an accident, NYCHA could have

attempted to obtain documents, interview potential witnesses, and might have been able to

detennine whether the plaintiff in fact fell at the alleged time and place (Affirmation in

Opposition, NYSCEF Doc. 13).

Similarly, in Fernandez, the court found that the delay in serving the notice of claim

prejudiced the respondent, as it was prevented from conducting an investigation in which it could

have examined the conditions and circumstances of the alleged incident within 90 days after the

alleged incident or within a reasonable time thereafter, and could have interviewed witnesses

while their memories were still fresh (See Fernandez v. City <~(New York, 131 A.D.3d 532,533,

15 N. Y.S.3d 166, 168 [2015]). Thus, this Court finds that NY CHA provided a particularized

evidentiary showing of substantial prejudice.

As Petitioner failed to satisfy all three prongs of General Municipal Law§ 50-e(S), the

motion for leave to serve and file a Late Notice of Claim against Respondent is DENIED.

This hereby constitutes the Decision and Order of the Court.

DATED: 12 )3 )2L( ENTER:

I-ION. KERRY J. WARD, A.J.S.C.

Hon. Keny J. Vvard, A.J.S.C.

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