Motion to Claim Exemption in Country-Wide Insurance Company a/s/o OLIVIA LAUREN NG v. The City Of New York| Trellis.Law

On April 29, 2022 a Complaint,Petition was filed involving a dispute between Country-Wide Insurance Company A S O Olivia Lauren Ng, and The City Of New York, for Torts - Motor Vehicle in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 04/29/2022 01:28 PM INDEX NO. 153667/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/29/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
_____________________________________________x

COUNTRY-WIDE INSURANCE COMPANY, Index No.:
a/s/o OLIVIA LAUREN NG,

Petitioner, PETITION TO ACCEPT
LATE NOTICE OF
CLAIM OR TO GRANT
-against- LEAVE TO FILE
LATE NOTICE OF
THE CITY OF NEW YORK, CLAIM

Respondent.
______________________________________________x

Martina Vilton, Esq., an attorney duly admitted to practice law in courts of the State of

New York, affirms the following under penalty of perjury:

1. I am an associate with the law firm of Jaffe & Velazquez, LLP, attorneys for the

Petitioner, and I am fully familiar with the facts and circumstances of this action. The source of

my knowledge is from a review of the file maintained by my office in its regular course of

business. The exhibits annexed hereto are true, accurate and correct copies.

2. I respectfully submit this Petition for a Court Order: (a) Deeming the Notice of

Claim previously served timely filed, nunc pro tunc, pursuant to General Municipal Law of the

State of New York § 50-e; or in the alternative; (b) Granting Petitioner an extension pursuant to

General Municipal Law §50-e, to file a late Notice of Claim in the form previously filed and

annexed hereto against THE CITY OF NEW YORK; and (c) Granting such other, further and

different relief as this Court may deem just and proper.

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FACTUAL BACKGROUND AND PROCEDURAL HISTORY

3. The nature of the claim is subrogation. Petitioner, COUNTRY-WIDE INSURANCE

COMPANY (the “Petitioner” or “CWI”) seeks recovery of the payments that they made to their

insured/subrogor, OLIVIA LAUREN NG, for property damages caused by the Respondent’s

THE CITY OF NEW YORK, (“NYC”) driver’s negligence in the motor vehicle accident, and to

recover the collision deductible of the Plaintiff’s policyholder (Plaintiff’s subrogor) .

4. Petitioner’s subrogor’s motor vehicle was damaged due to a motor vehicle accident

that occurred on February 10, 2021, at approximately 8:30 a.m. on Avenue P, between West 1st

and West 2nd Street, in the County of Kings, State of New York. According to the Plaintiff’s

subrogor, the driver of the Respondent NYC, and more particularly Department of Sanitation of

the City of New York, was backing up and collided into Plaintiff’s subrogor’s vehicle, which

was legally parked and unoccupied at the time of the accident, causing damages. Copy of the

Report of Motor Vehicle and Automobile Accident Report are annexed hereto as EXHIBIT

“A”.

5. This matter has been referred to the Petitioner’s law firm Jaffe & Velazquez, LLP,

by the Petitioner, on March 21, 2022, to proceed with this property damage subrogation claim

against NYC. I can attest that this claim was referred to the law office of Jaffe & Velázquez, LLP

by the Petitioner on March 21, 2022, as I am the supervising attorney for the Property Damage

Subrogation Unit and as such, receive all the referrals from CWI via email. From my position as

the supervising attorney for the Property Damage Subrogation Unit, I have personal knowledge

of Petitioner’s law firm property damage subrogation litigation files, including the litigation file

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in this matter, which I have reviewed and which is kept in the ordinary course of business by

Plaintiff’s law firm.

6. Following receipt of the referral, this matter was promptly set up in the Petitioner’s

law firm case management system and assigned to a paralegal at the law firm on March 31,

2022. From the review of the file and my personal knowledge of this matter, I can attest that the

Petitioner’s law firm was not aware of this claim prior to March, 2022.

7. Shortly thereafter, on April 1, 2022, the assigned paralegal submitted a Notice of

Claim with all the supporting documents, including the Report of Motor Vehicle Accident,

Automobile Accident Report, repair estimates, photographs of Plaintiff’s subrogor’s vehicle and

proofs of payment, to NYC by completing the digital Vehicular Property Damage Claim Form

located on the New York City Comptroller’s website. NYC then forwarded a letter

acknowledging receipt of the claim; however, to date, there was no additional communication

from NYC with respect to this claim. Copy of said Notice of Claim together with efiling receipt,

the supporting documents and acknowledgment letter are annexed hereto as EXHIBIT “B”.

8. Petitioner now makes this application for an Order deeming the Notice of Claim

previously served timely filed, nunc pro tunc, pursuant to General Municipal Law of the State

of New York § 50-e; or in the alternative, granting Petitioner an extension pursuant to General

Municipal Law §50-e, to file a late Notice of Claim in the form previously filed and annexed

hereto against NYC.

9. In further support of this application, an Affidavit of Merit by the Petitioner’s

representative is annexed as EXHIBIT “C”.

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THE NOTICE OF CLAIM PREVIOUSLY SERVED
SHOULD BE DEEMED TIMELY FILED, NUNC PRO
TUNC; OR, IN THE ALTERNATIVE, PLAINTIFF SHOULD
BE PERMITTED TO SERVE LATE NOTICE OF CLAIM

9. Pursuant to General Municipal Law § 50-e, the Court has a broad discretion to

grant leave to serve late Notice of Claim. The section reads as follows:

Application for leave to serve a late notice. Upon
application, the court, in its discretion, may extend the time to
serve a notice of claim specified in paragraph (a) of subdivision
one of this section…The extension shall not exceed the time
limited for the commencement of an action by the claimant against
the public corporation. In determining whether to grant the
extension, the court shall consider, in particular, whether the public
corporation or itsattorney or its insurance carrier acquired actual
knowledge of the essential facts constituting the claim within the
time specified in subdivision one of this section 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. General Municipal Law §
50-e(5).

10. Furthermore, General Municipal Law § 50-e(6) states that:

Mistake, omission, irregularity or defect. 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.

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11. General Municipal Law § 50–e(5) bestows upon the court discretion to determine

whether to grant or deny leave to serve a late notice of claim within certain parameters (Porcaro

v. City of New York, 20 AD 3d 357 (1st Dept. 2005); Carter v. City of New York and NYCTA, 5

AD 3d 480 (2d Dept. 2004), keeping in mind that it must strike equitable balance between a

public corporation’s reasonable need for prompt notification of a claim against it, and the

injured party’s need interest in just compensation. Matter of Reisse v. County of Nassau, 141 AD

2d 649 (2d Dept. 1988).

12. In Quiroz v. City of New York, 154 AD 2d 315 (1st Dept. 1989), the court

discussed the Legislature’s reasons for enacting this provision:

The 1976 amendments to General Municipal Law § 50-e (L
1976, ch 745, § 2, eff Sept. 1, 1976) were intended to achieve “a
more equitable balance ... between a public corporation's
reasonable need for prompt notification of claims against it and an
injured party's interest in just compensation.” (Camarella v East
Irondequoit Cent. School Bd., 34 NY 2d 139, 142-143.) The
amendments were intended to afford courts greater flexibility in
the disposition of late notice claims in order that substantial justice
might be affected. (21st Ann Report of NY Jud Conf, at 282,287-
288.)

13. The statute is remedial in nature and, therefore, should be liberally

construed (Camacho v. City of New York, 187 AD 2d 262 (1st Dept. 1992); Matter of Santana v.

City of New York, 183 AD 2d 665 (1st Dept. 1992). Additionally, the statute is not intended to

“operate as a device to defeat the rights of persons with legitimate claims” (Annis v. New York

City Tr. Auth., 108 AD 2d 643 (1st Dept. 1985).

14. The key factors the Court must consider in determining whether leave should be

granted are “whether the movant demonstrated a reasonable excuse for the failure to serve the
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notice of claim within the statutory time frame, whether the municipality acquired actual notice

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

thereafter, and whether the delay would substantially prejudice the municipality in its defense.”

Dubowy v. City of New York, 305 AD 2d 320 (1st Dept. 2003).

15. The presence or absence of any one of the foregoing factors is not determinative

(Dubowy v. City of New York, 305 AD 2d 320 (1st Dept. 2003); however, the absence of a

reasonable excuse is not, standing alone, fatal to the application (Matter of Ansong v. City of New

York, 308 AD 2d 333 (1st Dept. 2003); Weiss v. City of New York, 237 AD 2d 212 (1st Dept.

1997).

NYC HAD ACTUAL KNOWLEDGE OF THE RELEVANT
FACTS CONSTITUTING THE CLAIM, AND
ACCORDINGLY HAS NOT BEEN SUBSTANTIALLY
PREJUDICED BY THE DELAY

16. One of the factors set forth in General Municipal Law § 50-e is “whether the

delay in serving the notice of claim substantially prejudiced the public corporation in

maintaining its defense on the merits…” This factor often depends on when, or whether, “the

public corporation…acquired actual knowledge of the facts constituting the claim.” “Whether the

public corporation acquired timely actual knowledge of the essential facts constituting the claim

is seen as ‘a factor which should be accorded great weight’ “. Dell’Italia v. Long Island R.R.

Corp., 31 AD 3d 758 (2d Dept. 2006); Battle v. City of New York, 261 AD 2d 614 (2d Dept.

1999).

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17. It is submitted that the NYC acquired actual knowledge of the relevant facts

constituting the claim after the claim arose. The driver of the Respondent’s vehicle involved in

the accident was the employee of the Respondent. See Cruz v. City of New York, 149 AD 3d 835

(2d Dept. 2017), where the Court held that municipal entity acquires actual knowledge of the

essential facts constituting the claim within 90 days of the accident, when its employees are

directly involved, and the police accident report gives reasonable notice from which it may be

inferred that that a potentially actionable wrong had been committed by the by the municipal

entity. See also Matter of Herman J. Vasquez v. City of Newburgh, 35 AD 3d 621 (2nd Dept

2006) citing, Gibbs v. City of New York, 22 AD 3d 717, 719 (2005)) (Accidents involving a city

employee driving a city vehicle on behalf of a city agency gives rise to the inference that the City

effectively received actual notice of the essential facts constituting the claim).

18. Petitioner’s subrogor provided the Petitioner with an Accident Claim Slip from

NYC, which contains identifying information for this accident, including the date, time, location

and the NYC vehicle involved and clearly establishes that NYC had knowledge of this accident

and this claim. Additionally, policyholder provided a photograph of the vehicle that struck the

Insured vehicle. The photograph is of a NYC Sanitation Department Vehicle and shows the

license plate, which reads City of New York BA1613, clearly identifying the vehicle as that of

the Respondent NYC. (Accident Claim Slip and the photograph are annexed hereto as

EXHIBIT “D”).

19. NYC might argue that they would suffer prejudice from the delay which deprived

them of the opportunity to investigate Petitioner’s claim. It is submitted, that the failure to serve

the NYC within the statutory period has not resulted in substantial prejudice to NYC. The basis

of Petitioner’s subrogation claim is property damage to Petitioner subrogor’s automobile.
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Property damage claims are claims that are readily ascertainable and calculated based on the

inspection of the automobile following the loss. Said damages are documented in detail on the

estimates prepared prior to the repairs of the automobile, accompanied by photographs of the

damages to the vehicle to further support the amount of damages and cost of repairs. It is

submitted that all such contemporaneous records and evidence in Petitioner’s possession were

preserved by the Petitioner and nothing prevents an accurate reconstruction of the circumstances

of the accident (Vitali v. City of New York, 205 AD 2d 636 (2d Dept 1994). All said documents

were submitted to NYC with the Notice of Claim (EXHIBIT “B”), and ameliorate any prejudice

resulting to NYC by the delay in filing of a Notice of Claim. See Cruz, supra.

20. See also Sayad v. New York City Transit Authority, 246 AD 2d 639 (2d Dept. 1988),

where the Court held that since “…the defendant acquired actual knowledge of the essential facts

of the plaintiff's claim either within 90 days after it arose or within a reasonable time

thereafter,…. In light of this, among other things, and the lack of prejudice to the defendant in

maintaining its defense on the merits, the court did not improvidently exercise its discretion in

granting the plaintiff leave to serve a late notice of claim.”

21. In the instant matter, the delay was neither willful nor malicious. Petitioner’s law

firm submitted the Notice of Claim to NYC promptly after receiving the referral of this claim

from the Petitioner. The delay in referring this claim to Petitioner’s law firm was caused by the

delay in the investigation and in obtaining relevant information from Petitioner’s subrogor,

which allowed for identification of the vehicle(s) involved in this accident. Petition did not

receive the information confirming that NYC vehicle was involved in this accident until March

21, 2022, on which date the matter was promptly referred to Petitioner’s law firm. See also

EXHIBIT “C”, an Affidavit in support of the Petition. There is no prejudice to the

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Respondent in deeming service of Petitioner’s Notice of Claim as timely, nunc pro tunc, or, in

the alternative, granting Petitioner leave to file a late Notice of Claim in the form previously filed

and annexed hereto against NYC.

22. In view of the above, the undersigned demonstrated reasonable excuse for the

delay in filing the Notice of Claim. However, should this honorable Court disagree, it is

respectfully submitted, that courts have previously held that reasonable excuse is not essential

for obtaining relief under the remedial provisions of General Municipal Law § 50-e, and absence

of a reasonable excuse for a delay in serving a notice of claim does not bar the granting of a

petition for leave to serve a late notice of claim where, there is actual knowledge and an absence

of prejudice. Pendley v. City of New York, 119 AD3d 410 (2017); Frederickson v. New York City

Housing Authority, 87 AD 3d 425 (1st Dept.2011). See also Cruz v. City of New York, 149 AD

3d 835 (2d Dept. 2017), and St. Paul Guardian Ins. Corp. v. Pocatello Fire Dist., 90 AD 3d 761

(2d Dept. 2011).

23. See also matter of Gerzel v. City of New York, 117 AD 2d 549 (1st Dept. 1986),

where the Court granted petitioner’s application to file late notice of claim despite a seven month

delay. The Court held that “… counsel's failure to present a more reasonable explanation is

without significance given the existence of actual notice and the city's failure to show substantial

prejudice by the late notice.”

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THE WITHIN APPLICATION IS MADE TIMELY BEFORE
THE EXPIRATION OF THE STATUTE OF LIMITATION
24. Municipal Law Section 50–e(5) permits a court, in its discretion, to extend the

time for a claimant to serve a late notice of claim, provided that the extension does “not exceed

the time limited for the commencement of an action by the claimant against the public

corporation.

25. The time for the commencement of an action against a municipality is one year

and 90 days.

27. It is submitted that this application is made timely within the time limitations for

the commencement of the action against the municipality. The statute of limitations does not

expire until May 11, 2022. See also Pierson v. City of New York, 56 NY 2d 950 (1982).

CONCLUSION

Since Petitioner demonstrated that NYC acquired actual knowledge of the relevant

facts constituting the claim; that NYC would not be substantially prejudiced by the delay in

filing the Notice of Claim; and presented a reasonable excuse for the delay in filing the Notice

of Claim, Petitioner’s application for an Order deeming the Notice of Claim previously served

timely filed, nunc pro tunc, pursuant to General Municipal Law of the State of New York § 50-

e; or in the alternative; granting Petitioner an extension pursuant to General Municipal Law §50-

e, to file a late Notice of Claim in the form previously filed and annexed hereto against THE

CITY OF NEW YORK; should be granted.

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WHEREFORE, Plaintiff prays for an Order:

(a) Deeming the Notice of Claim previously served timely filed, nunc pro tunc, pursuant to

General Municipal Law of the State of New York § 50-e; or in the alternative;

(b) Granting Petitioner an extension pursuant to General Municipal Law §50-e, to file a late

Notice of Claim in the form previously filed and annexed hereto against THE CITY OF

NEW YORK; and

Dated: New York, New York
April 29, 2022

By: __________________________
Martina Vilton, Esq.

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RULE 130 - 1.1-a CERTIFICATION
Martina Vilton, Esq., an attorney at law licensed to practice in the State of New York, and the
attorney for Petitioner in this action, hereby certifies that, to the best of his knowledge,
information and belief, formed after an inquiry reasonable under the circumstances, the
presentation of the contentions contained herein are not frivolous as defined by 22 NYCRR
130-1.1 (c).

Dated: New York, New York
April 29, 2022
___________________
Martina Vilton, Esq.

RULE 202.70.17 CERTIFICATION
This affirmation is compliant with Rule 202.70.17 as the word count of this Petition, excluding
the caption, table of contents, table of authorities, and signature block, is 2,910 words.

Dated: New York, New York
April 29, 2022

________________________
Martina Vilton, Esq.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

Index No.:

COUNTRY-WIDE INSURANCE COMPANY,
a/s/o OLIVIA LAUREN NG,

Petitioner,

THE CITY OF NEW YORK,

Respondent.

NOTICE OF PETITION
AND
PETITION TO ACCEPT LATE NOTICE OF CLAIM OR
GRANT LEAVE TO FILE LATE NOTICE OF CLAIM

Jaffe & Velazquez, LLP
Attorneys for Petitioner
40 Wall Street- 13th Fl
New York, NY 10005
(212) 809-7800
Matter ID: 22CWI001433

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April 29, 2022

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April 29, 2022

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Complaint,Petition: Country-Wide Insurance Company a/s/o OLIVIA LAUREN NG v. The City Of New York

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