Preview
FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020
NYSCEF NO. 154065/2020
INDEX NYSCEF:
FILED: DOC.NEW
NO. 33
YORK COUNTY CLERK 0 6 / 18 / 2020 10 : 53 AM|
RECEIVED 09/22/2021
NY . NElW3YORK RECEIviM9%N@sr15449%&A½0
COUNTY CLEKK 0 6/18 /2029 10 ; 53 ABS
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/ 2020
SUPREME COURT OF THE STATE OF NEWYORK
COUNTY OF NEWYORK
X
SHIRLEY PETWAY, Index # 15gs/2020
Petitioner,
AFFIRMATION
-against-
NEW YORKCITY HOUSING AUTHORITY,
Respondent.
x
ALISON R. l(EENAN an atlemey duly admitted to practice law In the
Courts of the Slate of New York, afilrms the truth of the following under the
penalties of perjmy:
1. 1 am an attorney in the law flun of BURNS & HARRIS, ESQS.,
attomeys for the petitioner in the captioned matter and am fuBy familiar with
the facts and circumstances herein based upon my ieview of the 19e
maintained in this office.
2. I submit this Affirmation in support of the Inslant motion for an
Order granging the Notice of Claim tiled upon NEW YORK CITY HOUSING
AUTHORATY on January 15,2020,deemed timely filed nunopro func.
S This is a claim for personal Injuries sustained by claimant,
SHIRLEY PE1WAY as a result of the nagilgence of the respondent NEW
YORK CITY HOUSING AUTHORITY In its ownership, operation,
maintenance, management, supervision and contal of premises located at 70
Malcolm X Bouleved, in the County, City and State of New York, move
specifically Apt 2J at said premises.
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4. The claimant sustained personal Irijudes when she tripped and
fell dudng the transition fbom the halfway to the bathroom of Apt 24 of
premises located at 70 Malcolm X Bird., In the County, City and 8tate of New
York. Claimant was caused to fall due to the dangerous, defective,
hazardous, unsafe, broken, uneven, raised, missing, broken, cracked, poorly
maintained, dilapidated, worn andfor depressed flooring at said location which
was owned and operated by NEW YORK CITY HOUSING AUTHORITY. As
a result of the albrementioned fall, petitioner was caused to sustain serious
personalinjurlee including but not Ilmited to a fractured hip requiring a total
hip replacement as a sesult of the negligence of the Respondent
6. On January 18, 2020, Petitioner SHIRLEY PETWAY relained
our ollice to represent her In the above.captioned matter. A Notice of Claim
was prepared and served immediately upon the respondent, NEW YORK
CITY HOUSING AUTHORITY, on January 16, 2020, A copy of the Notice of
CIabn is annexed hereto as Exhibit "A".
THERE 18 NO PREJUDICE TO THE RESPONDF.BIT
6. The petitioner herein has been in and out of the hospital since
the date of accident and additionally, the petitioner was not awme of the time
limits necessary to file a Notice of Claim. Father, Ms. Petway was admined
to a nursing and sehabilitation home and was under a lockdown with no
visilots allowed uns she was discharged on May 298, 2020 due to the
cogenavirus pandomlo and executive onfera. Attached hereto as Exhibit "If
is a copy of Ms. Petway's hospital record. There is no prejudice against the
.
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.
respondents herein. Furthennore, the underlying facle of the claim became
known to vespondent shortly after 11s occurrence. Petitioners son Louis John
was present in the apartment when he heard politioner fall and went to her
aide and trans ported petitioner to Harlem HospilaL Shority therealler Mr.
Louis John reported the accident to respondent, NEW YORK CITY HOUSING
AUTHORITY, Ms. Roy, the housing assistant in her office at 90 Lenox
"C"
Avenue, New York, NY. Attached heisto as Exhibit is an atildavit from
Louis John.
7. in Lones; v. New YodtCRv 1%malna Authority. 225 A.D.2d 492,
839 N.Y.S.2d 389 (18
Dept March 1998), the court held that the lower court
did not Improvidently exercise its discretion in pennitling petitioner to tile a
notice of claim six and one-half months after his accident as he did not
ascertain the severty of his In jury until three months aBar the acckfent, and
the underlying facts of the claim became known to respondent shortly after
the expiration of the 90-day slatutory time period. The court fusther added
that even If the condition which caused the accident - the lack of
allegedly
handrails on a atabcase -had changed, R was likely that respondent, a
housing authorty, had made the change or made a secord of L §ll.
8. Similarly, the court found In gie Matter of Nicholas Annis_v. New
York City Transit Authority. (1"
108 A.D.2d 848, 486 N.Y.S.2d 529 Dept.
1985), that because the authority had actual knowledge of the occunence, no
prejudice resulted to R tom the two-day delay in serving a notice of claim
which, the passenger a8eged, was not lifed earlier because he InitiaBy
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NEW YORK COUNTY CLERK 0-6-/T8-f2-070-1-0-5-3-Kal
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YORK CLERK 06 /18 10: At
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2020
believed that his injury was relatively minor, but it Inter became pmgressively
worse. The court Auther found that the Issue relating to whether the
passenger was actually injured in the derailment was to be determined In the
action and was not a requistle to the tiling of a notice of claim. jd.
9. In the present case at hand, petitioner's son told respondent of
the accident, see Exhibit "C". Respondent knew of the underlying facts right
away. There would be no substantial prejudice to sespondent.
10. In the Matter of Gerzel v. New York City Health & Hospitals
_Qgm.117 A.D.2d 549, 499 N.Y.S.2d 60 (1st Dept. 1986), the Court stated
that "counsers failum to present a more reasonable explanation is without
prejudice."
significance given...the City's failure to show substantial See
153 (2nd
Rachenbercer v. Nassau County Medical Center.1121 A.D.2d 150,
Dept. 1985).
11. The delay In filing the Notice of Claim, in this case did not
substantially prejudice Respondent's ability to defend on the merits. See,
Germal.supre. The Court in gggg[ held:
"The only legitimate purpose served by Section
50(e) is to protect the public corporation against
spurious claims and to assure it 'an adequate
opportunity...to explore the merits of the claim
available'."
while information is SEl readBy Iggs
v. NEW YORK CIT-Y HEALTH & HOSPITALS
_QQBP..,, 304 N.Y.440, 108 N.E.2d 397 (1952);
GarzaL ..v. NEW _Y_ORK CITY HEALTH &
HOSPITALS CORP..sunra.
The Courts have further held:
"...8ection 50(e) empowers the courts to evaluate
requests for relief from the 90 day IIIIng requirement by
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FILED: DOC.NEW
NYSCEF NO. YORK
33 COUNTY CLERK : RECEIVED 09/22/2021
NY flnB5Xt. RECEI@pEgyl|@gg15 f¼g6jpgp20
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. striking an 'equitable balance...between a pubilc
corporation's reasonable need ibr pmmpt notMcation of
ofalms against it and an injured party's interest in just
compensa8on'."
Herman v.. NEW YORK CITY HEALTH &
HOSPITALS CORP.. 25, 85 AD.2d 28 447 N.Y.S.2d 258
(1st Dept. 1982); Gental v. NEW YORK CITY HEALTH &
MOSPlTALS CORP.. gm .
12. The within motion is made within one jpar and90 days aRar the
dele of the incident. See Tortorici M. East Rockaway Public School District No,
3350P8 Ambrosano v.
j& 191 A.D.2d 495, 594 N.Y.S.2d Dept., 1993);
(3'8
Canaloharle Central School Districh 174 AD.2d 914, 571 N.Y.S.2d 612
Dept.,1991); Friedman v. Svosset Central School District. 154 A.D.2d 337,
(2d
545 N.Y.8.814 Dept 1989).
18. it is respectfully submitted that a reasonable explanation for
untmeliness must be considered, together with all of the relevant factors in
deciding whether to grant the extension. in Buono v. City pf New York. 240
(2d stated:
AD.2d 689 Dept 1997), the Court
.
"although the excuse fendered by Mr. Buono for
a failure to serve a Notice of Claim within the
prescribed time is tenuous, this factor alone
dose not warrant denial of the instant
applica8on."
14. Similarly, in Reipse v. County of Nasamu. 141 A.D.2d 849, 629
371 GP8 the Court stated that all relevant facts must be
N.Y.S.2d Dept 1988),
considered despite the fact that "the reasonableness of the Pettlloner's
debatable."
excuse of the delay is
.
15. The Court of Appeals held In Bearv v. City otRve. 44 N.Y.2d 398,
408 N.Y.2d 9, 377 N.E.2d 485 (1978), that the standards of Soc. 50(e)(a) of
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NYSCEF
FILED: DOC.NEW
NO. 33
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RECEIVED 09/22/2021
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NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2020
the General Municipal Law were modified by the Legislature so that the
grounds upon which a court may ellow late llling were expanded and the Sme
within which an application Ibr auch relief can be made was lengthened.
16. The Court went on to say that the standards of Sec. 50(e) are
far more classic. in substance, they require a court to consider not only the
factors to which it was fonnergy limited, but other newly specified ones, along
circumstances."
with "all other relevant facts and Moreover, in deciding
whether to exercise Its discretion, the Courts attention is also focused upon
whether the public corporation or those acting for it, acquired actual
knowledge of the essential facts of the claim within the ninety-day period or a
reasonable time thereaSar. See Winzel v. County of SuffoR. 92 A.D.2d 545,
(2nd Ansaldo v. Citvor New 92 .D.2d
46g N.Y.2d 112 Dept 1983); York. 557,
(288 1983).
459 N.Y.S.2d 302 Dept
17. The delay in filing the Notice of Claim, in this case did not
substantially prejudice Respondent's ability to defend on the merits.
18. Hence, since these is no prejudice to the respondent, and
claimant brought this application expediffously, this Honorable Court should
grant the relief sought herein.
19. Claimant would be extremely prejudiced were this application
denied, in that it would prevent her from bringing a meritorious acGon as a
result of the negligence of the respondent.
"D"
21. Annexed hereto as Exhibit is an Affldavit of the Petitioner
in furthereupport of this application.
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33 COUNTY CLERK : RECEIVED 09/22/2021
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22. No prior application for the relief sought herein has been made.
23. It is respectfully requested that an Order be granted herein
permitting the Notice of Claim served upon the respondent be deemed timely
served nunoprotune.
WHEREFORE, it is respectfully requested that the instant Order to
Show Cause be in all respectsgranted, and for other and further relief as to
this court may seem Just and proper.
Dated: New York, NY
June6,2020 -
ALISON R. KEENAN
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Preview
FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 NYSCEF NO. 154065/2020 INDEX NYSCEF: FILED: DOC.NEW NO. 33 YORK COUNTY CLERK 0 6 / 18 / 2020 10 : 53 AM| RECEIVED 09/22/2021 NY . NElW3YORK RECEIviM9%N@sr15449%&A½0 COUNTY CLEKK 0 6/18 /2029 10 ; 53 ABS NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/ 2020 SUPREME COURT OF THE STATE OF NEWYORK COUNTY OF NEWYORK X SHIRLEY PETWAY, Index # 15gs/2020 Petitioner, AFFIRMATION -against- NEW YORKCITY HOUSING AUTHORITY, Respondent. x ALISON R. l(EENAN an atlemey duly admitted to practice law In the Courts of the Slate of New York, afilrms the truth of the following under the penalties of perjmy: 1. 1 am an attorney in the law flun of BURNS & HARRIS, ESQS., attomeys for the petitioner in the captioned matter and am fuBy familiar with the facts and circumstances herein based upon my ieview of the 19e maintained in this office. 2. I submit this Affirmation in support of the Inslant motion for an Order granging the Notice of Claim tiled upon NEW YORK CITY HOUSING AUTHORATY on January 15,2020,deemed timely filed nunopro func. S This is a claim for personal Injuries sustained by claimant, SHIRLEY PE1WAY as a result of the nagilgence of the respondent NEW YORK CITY HOUSING AUTHORITY In its ownership, operation, maintenance, management, supervision and contal of premises located at 70 Malcolm X Bouleved, in the County, City and State of New York, move specifically Apt 2J at said premises. 1 of 7 1 of 7 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 NYSCEF NO. 154065/2020 INDEX NYSCEF: FILED DOC. : NO. 33 NEW YORK COUNTY CLERK 06 / 18 / 2020 10 : 53 AM| RECEIVED 09/22/2021 WYU ----y ...... --.... ---.,-- --, y yr --, ---y -- .-Tr ._, RECEI EF154 9%/3?¼Rp20 NYSCEF DOC. N0. 3 RECEIVED NYSCEF: 06/18/2020 4. The claimant sustained personal Irijudes when she tripped and fell dudng the transition fbom the halfway to the bathroom of Apt 24 of premises located at 70 Malcolm X Bird., In the County, City and 8tate of New York. Claimant was caused to fall due to the dangerous, defective, hazardous, unsafe, broken, uneven, raised, missing, broken, cracked, poorly maintained, dilapidated, worn andfor depressed flooring at said location which was owned and operated by NEW YORK CITY HOUSING AUTHORITY. As a result of the albrementioned fall, petitioner was caused to sustain serious personalinjurlee including but not Ilmited to a fractured hip requiring a total hip replacement as a sesult of the negligence of the Respondent 6. On January 18, 2020, Petitioner SHIRLEY PETWAY relained our ollice to represent her In the above.captioned matter. A Notice of Claim was prepared and served immediately upon the respondent, NEW YORK CITY HOUSING AUTHORITY, on January 16, 2020, A copy of the Notice of CIabn is annexed hereto as Exhibit "A". THERE 18 NO PREJUDICE TO THE RESPONDF.BIT 6. The petitioner herein has been in and out of the hospital since the date of accident and additionally, the petitioner was not awme of the time limits necessary to file a Notice of Claim. Father, Ms. Petway was admined to a nursing and sehabilitation home and was under a lockdown with no visilots allowed uns she was discharged on May 298, 2020 due to the cogenavirus pandomlo and executive onfera. Attached hereto as Exhibit "If is a copy of Ms. Petway's hospital record. There is no prejudice against the . 2 of 7 2 of 7 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 NYSCEF INDEX NYSCEF: NO. 154065/2020 FILED DOC. : NO. 33 NEW YORK COUNTY CLERK 0 6 /18 (2020 10 : 53 AM| RECEIVED 09/22/2021 NY 3ir :7 -yge]gemit'MM RECEI@pENY BoE F‡5409N@Q2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2020 . respondents herein. Furthennore, the underlying facle of the claim became known to vespondent shortly after 11s occurrence. Petitioners son Louis John was present in the apartment when he heard politioner fall and went to her aide and trans ported petitioner to Harlem HospilaL Shority therealler Mr. Louis John reported the accident to respondent, NEW YORK CITY HOUSING AUTHORITY, Ms. Roy, the housing assistant in her office at 90 Lenox "C" Avenue, New York, NY. Attached heisto as Exhibit is an atildavit from Louis John. 7. in Lones; v. New YodtCRv 1%malna Authority. 225 A.D.2d 492, 839 N.Y.S.2d 389 (18 Dept March 1998), the court held that the lower court did not Improvidently exercise its discretion in pennitling petitioner to tile a notice of claim six and one-half months after his accident as he did not ascertain the severty of his In jury until three months aBar the acckfent, and the underlying facts of the claim became known to respondent shortly after the expiration of the 90-day slatutory time period. The court fusther added that even If the condition which caused the accident - the lack of allegedly handrails on a atabcase -had changed, R was likely that respondent, a housing authorty, had made the change or made a secord of L §ll. 8. Similarly, the court found In gie Matter of Nicholas Annis_v. New York City Transit Authority. (1" 108 A.D.2d 848, 486 N.Y.S.2d 529 Dept. 1985), that because the authority had actual knowledge of the occunence, no prejudice resulted to R tom the two-day delay in serving a notice of claim which, the passenger a8eged, was not lifed earlier because he InitiaBy 3 of 7 3 of 7 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 NYSCEF NO. 154065/2020 INDEX NYSCEF: [FILED DOC. : NO. 33 NEW YORK COUNTY CLERK 0-6-/T8-f2-070-1-0-5-3-Kal RECEIVED 09/22/2021 NYp][|[aRUQ• NEw3 COUNTY /2020 53 RECEIglypEgygQEF)54%ý'ifffogtp20 YORK CLERK 06 /18 10: At NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2020 believed that his injury was relatively minor, but it Inter became pmgressively worse. The court Auther found that the Issue relating to whether the passenger was actually injured in the derailment was to be determined In the action and was not a requistle to the tiling of a notice of claim. jd. 9. In the present case at hand, petitioner's son told respondent of the accident, see Exhibit "C". Respondent knew of the underlying facts right away. There would be no substantial prejudice to sespondent. 10. In the Matter of Gerzel v. New York City Health & Hospitals _Qgm.117 A.D.2d 549, 499 N.Y.S.2d 60 (1st Dept. 1986), the Court stated that "counsers failum to present a more reasonable explanation is without prejudice." significance given...the City's failure to show substantial See 153 (2nd Rachenbercer v. Nassau County Medical Center.1121 A.D.2d 150, Dept. 1985). 11. The delay In filing the Notice of Claim, in this case did not substantially prejudice Respondent's ability to defend on the merits. See, Germal.supre. The Court in gggg[ held: "The only legitimate purpose served by Section 50(e) is to protect the public corporation against spurious claims and to assure it 'an adequate opportunity...to explore the merits of the claim available'." while information is SEl readBy Iggs v. NEW YORK CIT-Y HEALTH & HOSPITALS _QQBP..,, 304 N.Y.440, 108 N.E.2d 397 (1952); GarzaL ..v. NEW _Y_ORK CITY HEALTH & HOSPITALS CORP..sunra. The Courts have further held: "...8ection 50(e) empowers the courts to evaluate requests for relief from the 90 day IIIIng requirement by 4 of 7 4 of 7 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 INDEX NYSCEF: NO. 154065/2020 FILED: DOC.NEW NYSCEF NO. YORK 33 COUNTY CLERK : RECEIVED 09/22/2021 NY flnB5Xt. RECEI@pEgyl|@gg15 f¼g6jpgp20 NEW3YORK COUNTY CLERK 96/18 f2020 10:53 ABS NYSCEF DOC. No. 3 RECEIVED NYSCEF: 06/18/2020 . striking an 'equitable balance...between a pubilc corporation's reasonable need ibr pmmpt notMcation of ofalms against it and an injured party's interest in just compensa8on'." Herman v.. NEW YORK CITY HEALTH & HOSPITALS CORP.. 25, 85 AD.2d 28 447 N.Y.S.2d 258 (1st Dept. 1982); Gental v. NEW YORK CITY HEALTH & MOSPlTALS CORP.. gm . 12. The within motion is made within one jpar and90 days aRar the dele of the incident. See Tortorici M. East Rockaway Public School District No, 3350P8 Ambrosano v. j& 191 A.D.2d 495, 594 N.Y.S.2d Dept., 1993); (3'8 Canaloharle Central School Districh 174 AD.2d 914, 571 N.Y.S.2d 612 Dept.,1991); Friedman v. Svosset Central School District. 154 A.D.2d 337, (2d 545 N.Y.8.814 Dept 1989). 18. it is respectfully submitted that a reasonable explanation for untmeliness must be considered, together with all of the relevant factors in deciding whether to grant the extension. in Buono v. City pf New York. 240 (2d stated: AD.2d 689 Dept 1997), the Court . "although the excuse fendered by Mr. Buono for a failure to serve a Notice of Claim within the prescribed time is tenuous, this factor alone dose not warrant denial of the instant applica8on." 14. Similarly, in Reipse v. County of Nasamu. 141 A.D.2d 849, 629 371 GP8 the Court stated that all relevant facts must be N.Y.S.2d Dept 1988), considered despite the fact that "the reasonableness of the Pettlloner's debatable." excuse of the delay is . 15. The Court of Appeals held In Bearv v. City otRve. 44 N.Y.2d 398, 408 N.Y.2d 9, 377 N.E.2d 485 (1978), that the standards of Soc. 50(e)(a) of 5 of 7 5 of 7 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 INDEX NYSCEF: No. 154065/2020 NYSCEF FILED: DOC.NEW NO. 33 YORK COUNTY CLERK 0 6/18 /2020 10 : 53 AM| RECEIVED 09/22/2021 NygÇE|E'alilipt. RECEI ÑÜbE 4 20 NIllW3YORK COUNTY CLERK 06/18/2020 10: 53 AM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2020 the General Municipal Law were modified by the Legislature so that the grounds upon which a court may ellow late llling were expanded and the Sme within which an application Ibr auch relief can be made was lengthened. 16. The Court went on to say that the standards of Sec. 50(e) are far more classic. in substance, they require a court to consider not only the factors to which it was fonnergy limited, but other newly specified ones, along circumstances." with "all other relevant facts and Moreover, in deciding whether to exercise Its discretion, the Courts attention is also focused upon whether the public corporation or those acting for it, acquired actual knowledge of the essential facts of the claim within the ninety-day period or a reasonable time thereaSar. See Winzel v. County of SuffoR. 92 A.D.2d 545, (2nd Ansaldo v. Citvor New 92 .D.2d 46g N.Y.2d 112 Dept 1983); York. 557, (288 1983). 459 N.Y.S.2d 302 Dept 17. The delay in filing the Notice of Claim, in this case did not substantially prejudice Respondent's ability to defend on the merits. 18. Hence, since these is no prejudice to the respondent, and claimant brought this application expediffously, this Honorable Court should grant the relief sought herein. 19. Claimant would be extremely prejudiced were this application denied, in that it would prevent her from bringing a meritorious acGon as a result of the negligence of the respondent. "D" 21. Annexed hereto as Exhibit is an Affldavit of the Petitioner in furthereupport of this application. 6 of 7 6 of 7 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 INDEX NYSCEF: NO. 154065/2020 FILED NYSCEF : NEW DOC. NO. YORK 33 COUNTY CLERK : RECEIVED 09/22/2021 . NYSCEF DOC. No. 3 RECEIVED NYSCEF: 07/23/2020 22. No prior application for the relief sought herein has been made. 23. It is respectfully requested that an Order be granted herein permitting the Notice of Claim served upon the respondent be deemed timely served nunoprotune. WHEREFORE, it is respectfully requested that the instant Order to Show Cause be in all respectsgranted, and for other and further relief as to this court may seem Just and proper. Dated: New York, NY June6,2020 - ALISON R. KEENAN 7 of 7 •