Preview
FILED: NEW YORK COUNTY CLERK 09/13/2021 12:52 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/13/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK Index #154065/2020
_______________. ---------------------------------X
SHIRLEY PETWAY,
Petitioner, NOTICE OF APPEAL
-against-
THE NEW YORK CITY HOUSING AUTHORITY,
Respondent.
------------ -------------------------------- ------X
PLEASE TAKE NOTICE that the above named petitioner hereby appeals to the
Appellate Division of the New York Supreme Court in and for the First Judicial Department,
from an Order made by the Honorable Carol R. Edmead, J.S.C. dated June 23, 2021 and duly
entered on August 10, 2021 and served with Notice of Entry on August 24, 2021 denying
petitioner's Order to Show Cause deeming the Notice of Claim timely served and filed and said
petitioner hereby appeals from each and every part of that order as well as from the whole
thereof.
Dated: New York, New York
September 13, 2021
Yours very truly,
BURNS & HARRIS, ESQS.
Attorneys for Petitioner
By:
ALISON R. KEENAN
233 Broadway, Suite 900
New York, NY 10279
(212) 393-1000
TO:
KREZ & FLORES, LLP
Attorney for Respondent
225 - Suite 2800
Broadway
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New York, NY 10007
212-266-0400
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§upreme (Enurt of t1e 9tate of New Unrit
Appellate Binision: First 3Jubitial Bepartment
Informational Statement (Pursuant to 22 NYCRR 1250.3 [a])
For Court of Original Instance
SHIRLEY PETWAY
Date Notice of Appeal Filed
- against -
For Appellate Division
THE NEW YORK CITY HOUSING AUTHORITY
Civil Action O CPLR article 78 Proceeding Appeal O Transferred Proceeding
O CPLR article 75 Arbitration O Special Proceeding Other O Original Proceedings O CPLR article 78
O CPLR article 78 O Executive Law § 298
O Habeas Corpus Proceeding
O Eminent Domain O CPLR 5704 Review
O Labor Law § 220 or § 220-b
O Public Officers Law § 36
O Real Property Tax Law § 1278
IEWrrsmEflmtRWsummg ......-..
O Administrative Review O Business Relationships O Commercial O Contracts
O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters
O Family Court O Mortgage Foreclosure O Miscellaneous O Prisoner Discipline & Parole
O Real Property O Statutory O Taxation E Torts
(other than foreclosure)
C O U N S E L P R E S S
800-4-APPEAL
460 WEST 34™ STREET, 4™ FLOOR, NEW YORK, NEW YORK, 10001
WWW.COUNSELPRESS.COM
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NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/13/2021
Paper Appealed From (Check one only): If an appeal has been taken from more than one order or
judgment by the filing of this notice of appeal, please
indicate the below information for each such order or
judgment appealed from on a separate sheet of paper.
O Ameñded Decree O Determination M Order O Resettled Order
O Amended Judgement O Finding O Order & Judgment O Ruling
O Amended Order O Interlocutory Decree O Partial Decree O Other (specify):
O Decision O Interlocutory Judgment O Resettled Decree
O Decree O Judgment O Resettled Judgment
Court: SUPREME County: NEW YORK
Dated: JUNE 23, 2021 Entered: AUGUST 10, 2021
Judge (name in full): CAROL R. EDMEAD Index No.: 154065/2020
Stage: O Interlocutory E Final O Post-Final Trial: O Yes O No If Yes: O Jury E Non-Jury
Prior Unperfected Appeal and Related Action or Proceeding information
Are any appeals arising in the same action or proceeding currently pending in the court? U Yes D No
If Yes, please set forth the Appellate Division Case Number assigned to each such appeal.
Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other
jurisdiction, and if so, the status of the case:
Commenced by: E Order to Show Cause O Notice of Petition O Writ of Habeas Corpus Date Filed:
Statute authorizing commencement of proceeding in the Appellate Division:
Court: County:
Judge (name in full): Order of Transfer Date:
Court: County:
Judge (name in full): Dated:
Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief
requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. if an application under CPLR 5704, briefly describe the
nature of the ex parte order to be reviewed.
An appeal is taken from the Order of Justice Carol R. Edmead dated June 23, 2021 denying Petitioner's
Order to Show Cause deeming her Notice of Claim timely served and filed Nunc Pro Tunc
C O U N S E L P R E S S
800-4-APPEAL
460 WEST 34m STREET, 4m FLOOR, NEW YORK, NEW YORK, 10001
WWW.COUNSELPRESS.COM
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Issues: Specify the issue(s) proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the
grounds for reversal or modification to be advanced and the specific relief sought on appeal.
a) The Court misinterpreted the facts and misiriterpreted the law in denying Petitioner's Order to Show
Cause deeming Petitioner's Notice of Claim timely served and filed Nunc Pro Tunc; and
b) Any other issues which may arise upon review of the Record.
Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an
appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this for
is to be filed for a proceeding commenced in this court, fill in only the party's name and his, her, or its status in this court.
Examples of party's original status include: plaintiff, defendant, petitioner, respondent, claimant, defendant third-party
plaintiff, third-party defendant, and intervenor. Examples of a party's Appellate Division status include: appellant,
respondent, appellant-respondent, respondent-appellant, petitioner, and intervenor.
No. Party Name Original Status Appellate Division Status
1 SHIRLEY PETWAY PETITIONER APPELLANT
2 THE NEW YORK CITY HOUSING AUTHORITY RESPONDENT RESPONDENT
5
6
7 - .....
8
9
10
11
12 ..
13
14
15
16
17
18
19
20
COUNSEL PRESS
800-4-APPEAL
460 WEST 34m STREET, 4m FLOOR, NEW YORK, NEW YORK, 10001
WWW.COUNSELPRESS.COM
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Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the
notice of petition or order to show cause by which a special proceeding is to be commcu ed in the Appellate Division,
only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or
Se"
himself, the box marked "Pro must be checked and the appropriate information for that litigant must be supplied
in the spaces provided.
Ãtorney/Firm Name: BURNS & HARRIS
Address: 233 Broadway, Suite 900
City: New York, State: NY Zip: 10279 Telephone No: 212-393-1000
E-mail Address: Icuomo@bumsharris.com
Attorney Type: M Retained O Assigned O Government O Pro Se O Pro Hac Vice
or Parties Represented (set forth from above: 1
Party party number(s) table
Âtbrr ey F r a e: KÄEZ & FLORES, P
Address: 225 Broadway - Suite 2800
City: New York State: NY Zip: 10007 Telephone No: 212-266-0400
E-mail Address: Jgoldsmith@krezflores.com
Attorney Type: M Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above: 2
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above:
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above:
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above:
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O _Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above:
COUNSEL PRESS
800-4-APPEAL
460 WEST 34m STREET, 4m FLOOR, NEW YORK, NEW YORK, 10001
WWW.COUNSELPRESS.COM
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FILED DOC. NO. 27
YORK COUNTY CLERK 08 / 2 4 / 2021 05 : 0 7 PM RECEIVED 09/13/2021
NYSCEF DOC. NO. 26 RECEIVE D NY SCE F: 08/24/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----......X
SHIRLEY PETWAY,
Index No.: 154065/2020
Petitioner,
NOTICE OF ENTRY
-against-
THE NEW YORK CITY HOUSING AUTHORITY,
Respondent.
S I R S:
PLEASE TAKE NOTICE, that the Decision and Order of the honorable Carol
R. Edmead, J.S.C., of which the within is a true copy, was entered in the office of the Clerk of
the Supreme Court of New York, County of New York, on August 10, 2021.
Dated: New York, New York
August 24, 2021
KRE FLORES, LLP
By:
ITH
tto eys for Defendant
E YORK CITY HOUSING
A THORITY
225 - Suite 2800
Broadway
New York, New York 10007
(212) 266-0400
TO:
Burns & Harris
233 Broadway, Suite 900
New York, New York 10279
. 1 of 6
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|FILED DOC.
NYSCEF : NEW YORK
NO. 27 COUNTY CLERK 08 / 2 4 / 2021 05:07 PM| RECEIVED 09/13/2021
NYSWIdED: 19EW 6 YORK COUNTY CT.iERK 6 8 /10/2021 10:08 AP$
RECE IVE
NY8CBF DOC. N0. 24 RECEIVED NYSCEF: 08/10/2021
SUPREMBCOURTOFTHESTATEOFNEWYORK
COUNTYOFNEWYORK· PART IASMOTION35EFM
X
SHIRLEY PETWAY INDEXNo. 154065/2020
Petitioner,
MOTION DATE __04/26/2021__
- v -
MMNSEA NO. 001
NEWYORK CITY HOUStNG AUTHORITY,
Respondent.
DECISION+ ORDERON
MOTION
x
HON. CAROL R. EDMEAD:
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 3, 4, 5, 6, 7, 8,
9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20,21, 22, 23
EXTEND - TIME
were read on thiS motion to/for
Upon the foregoing documents, it is
ADJUDGED thatthe order to show cause of petitioner Shirley Petway (motion sequence
number001)isdenied as untimely, and thisproceedingis dismissed; and it is further
ORDERED that theClerkoftheCourtisdirectedtoenterjudgmentdismissingthe
proceeding;anditisfurther
ORDEREDthatcounselforrespondentNew York City Housing Authorityshallservea
of this order with notice of entry on all parties withinten(10)days.
copy along
154085/202D PETWAY, SHIRLEY vs. NEW YORK CITY HouslNG Page 1 of 5
Motion No. 001
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FILED DOC.
: NO. 27 COUNTY CLERK O 8 / 2 4 / 2021 05 : 07 PM|
RECEIVED 09/13/2021
NW ggLgg 6YORK COUNTY CLERK RECE IV]EBDlil2SSRF:1!liMBQtBig/ADQtp1
19gg 08 /10 /2021 10 : 0 8 AN|
NYSCEF DOC. No. 24 RECEIVED NYSCEF: 08/10/2021
In this proceeding, peti*iener Shirley Petway (Petway) seeks an order from the court that
the Notice of Claim which she heretofore served on the respondent New York City Housing
Authority (NYCHA) be deemed to have been timely served, nunc pro tune, on the agency
(me+iari sequence number 001). Por the following reasons, her order to show cause is denied.
BACKGROUND
Petway alleges that, on August 24, 2019, she sustained personal injuries when she tripped
and fell on the flooring between the hallway and the bathroom in apartment 2J in a b ."±g
located at 70 Malcolm X Blvd. in the County, City and State of New York. (the building). See
order to show cause, exhibit D (Petway aft), ¶ 3. Petway is the tenant of record of apartment 2J,
and NYCHA is the building's owner. 14., ¶ 2.
Petway's counsel avers that his office served a notice of clam on NYCHA on January 15,
2020. See order to show cause, Keenan em- --±ion,¶ S; exhibit A. NYCHA's counsel responds
that the notice of claim was untimely, and argues that Petway's order to show cause should
therefore be denied, and this dismissed. See Goldsmith affirmation in appa•ition,
pmceeding
mem of law at 1-2.
Petway commenced this proceeding via order to show cause on July 30, 2020. See order
to show cause, aff of service. NYCHA s:t±d opposition papers on September 8, 2020. See
Goldsmith afErmatics in opposition- Petway thereafter served reply papers, and this matter is
now fully submitted (motion sequence number 001).
DISCUSSION
General Municipal Law § 50-e pmvides, in pertinent part, as follows:
"a) In any case founded upon tort where a notice of claim is required by law as a
condition precedent to the commencement of an action or special paceeding against a
public corporation, as deSned in the general construction law, or any officer, appointee or
'I84065f2020 PETWAY,SHIRLEYvs. NEWYoRKcITYHoUSING Page 2 of S
Motion No. 801
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NO. 27 COUNTY CLERK INDEX NYSCEF:
RECEIVED NO. 154065/2020
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08/24/20Yf 05:07 P1
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employee thereof, the notice of claim shall comply with and be served in accordance with
."
the provisions of this section within ninety days af kr the claim arises ; ..
General Municipal Law § 50-e (1) (a) (emphasis added). In this case, Petway's potential claim
against NYCHA arose when she sustained her slip and fall injmies on August 24, 2019. See
onier to show cause, exhibit D (Petway aft), ¶3. However, her counsel avers that Petway's
notice of claim was not served on NYCHA until January 15, 2020. See order to show cause,
Keenan affirmation, ¶ 5; exhibit A. Because &e date 90 days after Petway's claim arose fell on
November 23, 2019, and because the instant notice of claim was not served until 53 days after
that on January 15, 2020, that notice of claim was clearly imtimely. "A timely and sufficient
NYCHA."
notice of claim is a condition precedent to asserting a tort claim against Davis v New
York City Hous. Auth., 172 AD3d 815, 816 (2d Dept 2019). If a petitioner fails to seek leave of
the court after serving an tmtimely notice of claim, her late service will be deemed a nullity, and
her claim will be denied and diamiaaed. See e.g., Matter of White v New York City Hous. Auth.,
38 AD3d 675 (2d Dept 2007).
General Municipal Law § 50-e (5) permits a court to grant a petitioner's request for leave
to serve a late notice of claim. When reviewing such a request, the statute directs the court to
consider several factors, including "whether the municipality acquired actual knowledge of the
essential facts constit:±::g the claim within 90 days from its meemal or a reasonable time
thereafter, whether the petitioner has demonstrated a reasonable excuse for failing to serve a
timely notice of claim, and whether the delay would substantially prejudice the municipality in
merits."
m-.in!=ining its defense on the Matter of White v New York City Hous. Auth., 38 AD3d
at 675-676, citing General Municipal Law § 50-e (5).
However, before the court can proceed to consider those factors, CPLR 403 (d) requires
the petitioner to first serve the order to show cause seeking leave to serve the late notice of claim
1s4085/2020 PaTWAY,SHIRLaY vs. NEW YoRK CITYHoUslNG Page 3 of 5
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FILED DOC.
NYSCEF NO. 27
Preview
FILED: NEW YORK COUNTY CLERK 09/13/2021 12:52 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/13/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index #154065/2020 _______________. ---------------------------------X SHIRLEY PETWAY, Petitioner, NOTICE OF APPEAL -against- THE NEW YORK CITY HOUSING AUTHORITY, Respondent. ------------ -------------------------------- ------X PLEASE TAKE NOTICE that the above named petitioner hereby appeals to the Appellate Division of the New York Supreme Court in and for the First Judicial Department, from an Order made by the Honorable Carol R. Edmead, J.S.C. dated June 23, 2021 and duly entered on August 10, 2021 and served with Notice of Entry on August 24, 2021 denying petitioner's Order to Show Cause deeming the Notice of Claim timely served and filed and said petitioner hereby appeals from each and every part of that order as well as from the whole thereof. Dated: New York, New York September 13, 2021 Yours very truly, BURNS & HARRIS, ESQS. Attorneys for Petitioner By: ALISON R. KEENAN 233 Broadway, Suite 900 New York, NY 10279 (212) 393-1000 TO: KREZ & FLORES, LLP Attorney for Respondent 225 - Suite 2800 Broadway 1 of 12 FILED: NEW YORK COUNTY CLERK 09/13/2021 12:52 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/13/2021 New York, NY 10007 212-266-0400 2 of 12 FILED: NEW YORK COUNTY CLERK 09/13/2021 12:52 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/13/2021 §upreme (Enurt of t1e 9tate of New Unrit Appellate Binision: First 3Jubitial Bepartment Informational Statement (Pursuant to 22 NYCRR 1250.3 [a]) For Court of Original Instance SHIRLEY PETWAY Date Notice of Appeal Filed - against - For Appellate Division THE NEW YORK CITY HOUSING AUTHORITY Civil Action O CPLR article 78 Proceeding Appeal O Transferred Proceeding O CPLR article 75 Arbitration O Special Proceeding Other O Original Proceedings O CPLR article 78 O CPLR article 78 O Executive Law § 298 O Habeas Corpus Proceeding O Eminent Domain O CPLR 5704 Review O Labor Law § 220 or § 220-b O Public Officers Law § 36 O Real Property Tax Law § 1278 IEWrrsmEflmtRWsummg ......-.. O Administrative Review O Business Relationships O Commercial O Contracts O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters O Family Court O Mortgage Foreclosure O Miscellaneous O Prisoner Discipline & Parole O Real Property O Statutory O Taxation E Torts (other than foreclosure) C O U N S E L P R E S S 800-4-APPEAL 460 WEST 34™ STREET, 4™ FLOOR, NEW YORK, NEW YORK, 10001 WWW.COUNSELPRESS.COM 3 of 12 FILED: NEW YORK COUNTY CLERK 09/13/2021 12:52 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/13/2021 Paper Appealed From (Check one only): If an appeal has been taken from more than one order or judgment by the filing of this notice of appeal, please indicate the below information for each such order or judgment appealed from on a separate sheet of paper. O Ameñded Decree O Determination M Order O Resettled Order O Amended Judgement O Finding O Order & Judgment O Ruling O Amended Order O Interlocutory Decree O Partial Decree O Other (specify): O Decision O Interlocutory Judgment O Resettled Decree O Decree O Judgment O Resettled Judgment Court: SUPREME County: NEW YORK Dated: JUNE 23, 2021 Entered: AUGUST 10, 2021 Judge (name in full): CAROL R. EDMEAD Index No.: 154065/2020 Stage: O Interlocutory E Final O Post-Final Trial: O Yes O No If Yes: O Jury E Non-Jury Prior Unperfected Appeal and Related Action or Proceeding information Are any appeals arising in the same action or proceeding currently pending in the court? U Yes D No If Yes, please set forth the Appellate Division Case Number assigned to each such appeal. Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other jurisdiction, and if so, the status of the case: Commenced by: E Order to Show Cause O Notice of Petition O Writ of Habeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Division: Court: County: Judge (name in full): Order of Transfer Date: Court: County: Judge (name in full): Dated: Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of proceeding. if an application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. An appeal is taken from the Order of Justice Carol R. Edmead dated June 23, 2021 denying Petitioner's Order to Show Cause deeming her Notice of Claim timely served and filed Nunc Pro Tunc C O U N S E L P R E S S 800-4-APPEAL 460 WEST 34m STREET, 4m FLOOR, NEW YORK, NEW YORK, 10001 WWW.COUNSELPRESS.COM 4 of 12 FILED: NEW YORK COUNTY CLERK 09/13/2021 12:52 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/13/2021 Issues: Specify the issue(s) proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds for reversal or modification to be advanced and the specific relief sought on appeal. a) The Court misinterpreted the facts and misiriterpreted the law in denying Petitioner's Order to Show Cause deeming Petitioner's Notice of Claim timely served and filed Nunc Pro Tunc; and b) Any other issues which may arise upon review of the Record. Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this for is to be filed for a proceeding commenced in this court, fill in only the party's name and his, her, or its status in this court. Examples of party's original status include: plaintiff, defendant, petitioner, respondent, claimant, defendant third-party plaintiff, third-party defendant, and intervenor. Examples of a party's Appellate Division status include: appellant, respondent, appellant-respondent, respondent-appellant, petitioner, and intervenor. No. Party Name Original Status Appellate Division Status 1 SHIRLEY PETWAY PETITIONER APPELLANT 2 THE NEW YORK CITY HOUSING AUTHORITY RESPONDENT RESPONDENT 5 6 7 - ..... 8 9 10 11 12 .. 13 14 15 16 17 18 19 20 COUNSEL PRESS 800-4-APPEAL 460 WEST 34m STREET, 4m FLOOR, NEW YORK, NEW YORK, 10001 WWW.COUNSELPRESS.COM 5 of 12 FILED: NEW YORK COUNTY CLERK 09/13/2021 12:52 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/13/2021 Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the notice of petition or order to show cause by which a special proceeding is to be commcu ed in the Appellate Division, only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or Se" himself, the box marked "Pro must be checked and the appropriate information for that litigant must be supplied in the spaces provided. Ãtorney/Firm Name: BURNS & HARRIS Address: 233 Broadway, Suite 900 City: New York, State: NY Zip: 10279 Telephone No: 212-393-1000 E-mail Address: Icuomo@bumsharris.com Attorney Type: M Retained O Assigned O Government O Pro Se O Pro Hac Vice or Parties Represented (set forth from above: 1 Party party number(s) table Âtbrr ey F r a e: KÄEZ & FLORES, P Address: 225 Broadway - Suite 2800 City: New York State: NY Zip: 10007 Telephone No: 212-266-0400 E-mail Address: Jgoldsmith@krezflores.com Attorney Type: M Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above: 2 Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above: Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above: Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above: Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O _Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above: COUNSEL PRESS 800-4-APPEAL 460 WEST 34m STREET, 4m FLOOR, NEW YORK, NEW YORK, 10001 WWW.COUNSELPRESS.COM 6 of 12 FILED: NEW YORK COUNTY CLERK 09/13/2021 12:52 PM INDEX NO. 154065/2020 No. 154065/2020 INDEX NYSCEF: NYSCEF : . NSW FILED DOC. NO. 27 YORK COUNTY CLERK 08 / 2 4 / 2021 05 : 0 7 PM RECEIVED 09/13/2021 NYSCEF DOC. NO. 26 RECEIVE D NY SCE F: 08/24/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----......X SHIRLEY PETWAY, Index No.: 154065/2020 Petitioner, NOTICE OF ENTRY -against- THE NEW YORK CITY HOUSING AUTHORITY, Respondent. S I R S: PLEASE TAKE NOTICE, that the Decision and Order of the honorable Carol R. Edmead, J.S.C., of which the within is a true copy, was entered in the office of the Clerk of the Supreme Court of New York, County of New York, on August 10, 2021. Dated: New York, New York August 24, 2021 KRE FLORES, LLP By: ITH tto eys for Defendant E YORK CITY HOUSING A THORITY 225 - Suite 2800 Broadway New York, New York 10007 (212) 266-0400 TO: Burns & Harris 233 Broadway, Suite 900 New York, New York 10279 . 1 of 6 7 of 12 FILED: NEW YORK COUNTY CLERK 09/13/2021 12:52 PM INDEX NO. 154065/2020 NO. INDEX NYSCEF: 154065/2020 |FILED DOC. NYSCEF : NEW YORK NO. 27 COUNTY CLERK 08 / 2 4 / 2021 05:07 PM| RECEIVED 09/13/2021 NYSWIdED: 19EW 6 YORK COUNTY CT.iERK 6 8 /10/2021 10:08 AP$ RECE IVE NY8CBF DOC. N0. 24 RECEIVED NYSCEF: 08/10/2021 SUPREMBCOURTOFTHESTATEOFNEWYORK COUNTYOFNEWYORK· PART IASMOTION35EFM X SHIRLEY PETWAY INDEXNo. 154065/2020 Petitioner, MOTION DATE __04/26/2021__ - v - MMNSEA NO. 001 NEWYORK CITY HOUStNG AUTHORITY, Respondent. DECISION+ ORDERON MOTION x HON. CAROL R. EDMEAD: The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20,21, 22, 23 EXTEND - TIME were read on thiS motion to/for Upon the foregoing documents, it is ADJUDGED thatthe order to show cause of petitioner Shirley Petway (motion sequence number001)isdenied as untimely, and thisproceedingis dismissed; and it is further ORDERED that theClerkoftheCourtisdirectedtoenterjudgmentdismissingthe proceeding;anditisfurther ORDEREDthatcounselforrespondentNew York City Housing Authorityshallservea of this order with notice of entry on all parties withinten(10)days. copy along 154085/202D PETWAY, SHIRLEY vs. NEW YORK CITY HouslNG Page 1 of 5 Motion No. 001 1 of 5 2 of 6 8 of 12 FILED: NEW YORK COUNTY CLERK 09/13/2021 12:52 PM INDEX NO. 154065/2020 NYSCEF NEW YORK INDEXNYSCEF: NO. 15 4065/2020 FILED DOC. : NO. 27 COUNTY CLERK O 8 / 2 4 / 2021 05 : 07 PM| RECEIVED 09/13/2021 NW ggLgg 6YORK COUNTY CLERK RECE IV]EBDlil2SSRF:1!liMBQtBig/ADQtp1 19gg 08 /10 /2021 10 : 0 8 AN| NYSCEF DOC. No. 24 RECEIVED NYSCEF: 08/10/2021 In this proceeding, peti*iener Shirley Petway (Petway) seeks an order from the court that the Notice of Claim which she heretofore served on the respondent New York City Housing Authority (NYCHA) be deemed to have been timely served, nunc pro tune, on the agency (me+iari sequence number 001). Por the following reasons, her order to show cause is denied. BACKGROUND Petway alleges that, on August 24, 2019, she sustained personal injuries when she tripped and fell on the flooring between the hallway and the bathroom in apartment 2J in a b ."±g located at 70 Malcolm X Blvd. in the County, City and State of New York. (the building). See order to show cause, exhibit D (Petway aft), ¶ 3. Petway is the tenant of record of apartment 2J, and NYCHA is the building's owner. 14., ¶ 2. Petway's counsel avers that his office served a notice of clam on NYCHA on January 15, 2020. See order to show cause, Keenan em- --±ion,¶ S; exhibit A. NYCHA's counsel responds that the notice of claim was untimely, and argues that Petway's order to show cause should therefore be denied, and this dismissed. See Goldsmith affirmation in appa•ition, pmceeding mem of law at 1-2. Petway commenced this proceeding via order to show cause on July 30, 2020. See order to show cause, aff of service. NYCHA s:t±d opposition papers on September 8, 2020. See Goldsmith afErmatics in opposition- Petway thereafter served reply papers, and this matter is now fully submitted (motion sequence number 001). DISCUSSION General Municipal Law § 50-e pmvides, in pertinent part, as follows: "a) In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special paceeding against a public corporation, as deSned in the general construction law, or any officer, appointee or 'I84065f2020 PETWAY,SHIRLEYvs. NEWYoRKcITYHoUSING Page 2 of S Motion No. 801 2 of 5 3 of 6 9 of 12 FILED: NEW YORK COUNTY CLERK 09/13/2021 12:52 PM INDEX NO. 154065/2020 [f ILED DOC. NYSCEF : -ÑEW YORK NO. 27 COUNTY CLERK INDEX NYSCEF: RECEIVED NO. 154065/2020 09/13/2021 08/24/20Yf 05:07 P1 NY 33) g 195E8 6 YORK COUNTY CLERK 08 /10 RECE IVEUENIFsiNgp: / 2 0 21 10 : 08 JD 1§§pplf NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/10/2021 employee thereof, the notice of claim shall comply with and be served in accordance with ." the provisions of this section within ninety days af kr the claim arises ; .. General Municipal Law § 50-e (1) (a) (emphasis added). In this case, Petway's potential claim against NYCHA arose when she sustained her slip and fall injmies on August 24, 2019. See onier to show cause, exhibit D (Petway aft), ¶3. However, her counsel avers that Petway's notice of claim was not served on NYCHA until January 15, 2020. See order to show cause, Keenan affirmation, ¶ 5; exhibit A. Because &e date 90 days after Petway's claim arose fell on November 23, 2019, and because the instant notice of claim was not served until 53 days after that on January 15, 2020, that notice of claim was clearly imtimely. "A timely and sufficient NYCHA." notice of claim is a condition precedent to asserting a tort claim against Davis v New York City Hous. Auth., 172 AD3d 815, 816 (2d Dept 2019). If a petitioner fails to seek leave of the court after serving an tmtimely notice of claim, her late service will be deemed a nullity, and her claim will be denied and diamiaaed. See e.g., Matter of White v New York City Hous. Auth., 38 AD3d 675 (2d Dept 2007). General Municipal Law § 50-e (5) permits a court to grant a petitioner's request for leave to serve a late notice of claim. When reviewing such a request, the statute directs the court to consider several factors, including "whether the municipality acquired actual knowledge of the essential facts constit:±::g the claim within 90 days from its meemal or a reasonable time thereafter, whether the petitioner has demonstrated a reasonable excuse for failing to serve a timely notice of claim, and whether the delay would substantially prejudice the municipality in merits." m-.in!=ining its defense on the Matter of White v New York City Hous. Auth., 38 AD3d at 675-676, citing General Municipal Law § 50-e (5). However, before the court can proceed to consider those factors, CPLR 403 (d) requires the petitioner to first serve the order to show cause seeking leave to serve the late notice of claim 1s4085/2020 PaTWAY,SHIRLaY vs. NEW YoRK CITYHoUslNG Page 3 of 5 Menon No. 001 3 of 5 4 of 6 10 of 12 FILED: NEW YORK COUNTY CLERK 09/13/2021 12:52 PM INDEX NO. 154065/2020 : NEW YORK COUNTY CLERK INDEX NYSCEF: NO. 154065/2020 FILED DOC. NYSCEF NO. 27