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FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/22/2021
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
SHIRLEY PETWAY,
Index No.: 154065/2020
Petitioner,
NOTICE OF RNTRY
-against-
THE NEW YORK CITY HOUSING AUTHORITY,
Respondent.
X
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 ORITY
225 - Suite 2800
Broadway
New York, New York 10007
(212) 266-0400
TO:
Burns & Harris
233 Broadway, Suite 900
New York, New York 10279
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YORK COUNTY CLERK 08/ 2 4 / 2021 05 : 07 PM| RECEIVED NYSCEF:
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NYSCEF DOC. NO. 24 RECEIVED NYSCEF: D8/10/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART IAS MOTION 35EFM
X
SHIRLEY PETWAY INDEX NO. 154005/2020
MOTION DATE 04/26/202L
- v -
MOTION SEQ. NO. 001
NEW YORK CITY HOUSING AUTHORITY,
Respondent.
DECISION + ORDER ON
MOTION
x
HON. CAROL R. EDMEACk
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
ADJUDOED that the order to show cause of petitioner Shirley Petway (motion sequence
number 001) is denied as untimely, and this proceeding is dismissed; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment dismissing the
proceeding; and it is further
ORDERED that counsel for respondent New York Housing Authority shall serve a
City
copy of this order along with notice of entry on all parties within ten (10) days.
184065E1020 PETWAY, SHIRLEY vs. NEW YoRK CITY HOUSING Page t of s
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In this proceeding, petitioner 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 tunc, on the agency
(motics sequence number 001). For the following reasons, her order to show cause is denied.
BACKGROUND
Petway alleges that, on August 24, 2019, she anatained personal injuries when she tripped
and fell on the flooring between the hallway and the bathroom in apartment 2J in a building
located at 70 MalcolmX Blvd. in the County, City and State ofNew York. (the building). Bee
order to show cause, exhibit D (Petway aff), ¶ 3. Petway is the tenant of record of apartment 2J,
and NYCHA is the building's owner. Id., ¶ 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 aM--¾ ¶ 5; exhibit A. NYCHA's counsel responds
that the notice of claim was untimely, and argues that Petway's order to show cause should
tha=-fam be denied, and this proceeding dismissed. Bee Golde=ith affirmation in opposition,
mem of law at 1-2.
Petway cor-reed this proceeding via order to show cause on July 30, 2020. See order
to show cause, aff of service. NYCHA submitted oppasiden papers on Seg.e=ber 8, 2020. See
Golde=ith amrmation in opposition. Petway thereafter served reply papers, and this matter is
now fully submitted (motion sequence number 001).
DISCUSSION
General Municipal Law § 50-e provides, in partinent 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 enmmencement of an action or special proceeding against a
public corporation, as defined in the general construction law, or any officer, ppakee or
184065f2020 PETWAY,SHIRLaYvs.NaWYoRKCITYHoUsING Page2ofS
MotionNo.001
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employee thereof, the notice ofclaim shall comply with and be served in accordance with
."
the provisions ofthis section within ninety days aper the claim arises; . .
General Municipal Law § 50-e (1) (a) (emphasis added). In this case, Petway's potential claim
against NYCHA arose when she sualmined her slip and fall injuries on August 24, 2019. See
order to show cause, exhibit D (Petway aff),13. However, her counsel avers that Petway's
notice of claim was not served on NYCHA until January 15, 2020. Sec order to show cause,
Keenan aturmation,1 5; exhibit A. Because the 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 ca January 15, 2020, that notice of claim was clearly intimely. "A timely and sufficient
NYCHA."
notice of claim is a condition precedent to asserting a tort claim against Davia 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 natimely notice of elaim, her late service will be deemed a mdlity, and
her claim will be denied and diaminaea See e.g., Matter of White v New York City Hous. Auth.,
38 AD3d 675 (2d Dept 2007).
General Municipal Law § 50-e (5) pennits 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 constituting the claim within 90 days fromits accrual or a reasonable time
thereafter, whether the petitioner has demonstrated areasonable excuse for failing to serve a
timely notice of claim, and whether the delay would substantially prejudice the municipality in
merits."
maintaining its defense on the Matter of White v New York City Hous. Auth., 38 AD3d
at 675-676, citing General lemicipal Law § 50-e (5).
However, before the court can proceed to consider those factors, CPLR 403 (d) =qui=s
the pet-tioner to first serve the order to show cause seeking leave to serve the late notice of claim
1s40ssf2020 PEiTWAY, aHIRLaY vs. NaW YoRK CITY HOUslNG Page 3 of 5
Mollon No. 001
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therein"
"in a manner specified by the court. The petitioner's failure to do so deprives the court
of personal jurisdiction, and warents dismissal ofthe proceeding. See e.g., Matter of Smith v
(1"
New York County Dist. Attorney's 03, 104 AD3d 559 Dept 2013). Here, the order to show
cause which the court signed for Petway on July 24, 2020 specified that:
"it is . . . ORDERED that service of a copy of this Order together with the papers upon
which it is based, be served upon [NYCHA], 250 Broadway, New York, NY 10007 the
31"
respondent
herein, by mailing a true copy thereof by regular mail on or before the
2020."
day of July,
See order to show cause (emphasis added). That order to show cause included four exhibits that
Petway's counsel had annexed thereto. However, NYCHA avers that three of those exhibits
were omitted from the copy of the order to show cause that Petway served. See Goldsmith
ahation in opposition, ¶ 5; exhibit 4. A petitioner's "failure to serve respondent as directed
order"
by its order to show cause, which required service of the papers supporting the creates a
jurir,dictional defect that warrants dismissal of the petition. Matter of Smith v New York County
Dist. Attorney's Of, 104 AD3d at 560 (emphasis added).
Petway's reply arguments urging the court not to dismiss the petition are unavailing.
NYCEF"
Counsel's assertion that "the papers were E-filed and the exbibits are on is irrelevant,
since the order to show cause did not specify electronic service, but, rather, service by mail of the
based."¹
order to show cause and all of "the papers upon which it is See Keenan reply
af F_=‡i:-, ¶ 6. Counsel's attempt to factually distinguish the case of Matter of Ruine v Hines
[1"
(57 AD3d 369 Dept 2008]) is likewise irrelevant, since that case merely discussed the rules
of service, but did not involve the service of an incomplete order to show cause, as did Matter of
1 NYCHA's coÃpoints out that one of the three o=itted documents which has been
Further,
entered onto the NYCEF system is password protected for reasons of confidentiality, and is
inaccessible to an unauthorized NYCEF user, with the result that that exhibit is still unavailable
to NYCHA. See Goldsmith affirmation in opposition, mem of law at 7.
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Smith v New York Dist, Auorney's Keenan amrmatian 19.
County Of reply (reply aff,
facts"
Finally, counsel's repeated assertions that NYCHA "acquired knowledge of the of
prejudice"
Petway's accident, and that it "suffered no from the late/incomplete service of
documenta herein are only relevant to a discussion of the factors listed in General Municipal Law
§ 50-e (5). However, they are not relevant to a review of the service rule set forth in CPLR 403
(d). Jd., W 4-8, 10-15. Therefore, the court rejects all of Petway's reply arguments.
Accordingly, the court deems that Petway's untimely notice of claim is a nullity, and finds that
her crder to show cause should be denied, and that this proceeding should be diaminaed.
DECISION
ACCORDINGLY, for the foregoing reasons it is hereby
ADJUDGED that the order to show cause of petitioner Shirley Petway (mation sequence
number 001) is denied as untimely, and this proceeding is dimianad; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment the
diamiaming
proceeding; and it is further
ORDERED that counsel for respondent New York City Housing Authority shall serve a
copy of this order along with notice of entry on all parties within ten (10) days.
.
6t23/2021
DATE CAROLR.EDMEAD,J.S.C.
CHECK0NE: X eASE DIEPoSED NON-FBIALDISPeSITION
GRANTED X DENMD GRANTEDIN PART cTHER
APPUCATION: SETTLEORDER SUB1ATORDER
CHECKlF APPROPRIATE: INCLUDESTRAN8FERP"mm FBUCIARY APPOGlTHENT REFERENCE
1s406sf2020 PETWAY,SHIALEY vs. NEWYORK CrTvHoUslNG Page 5 of s
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Preview
FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/22/2021 "A" EXHIBIT 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. 31 YORK COUNTY CLERK 0 8 /2 4 /2021 05 : 07 PM| RECEIVED 09/22/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 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 RNTRY -against- THE NEW YORK CITY HOUSING AUTHORITY, Respondent. X 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 ORITY 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 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 INDEX NO. 15 409/22/2021 0 65 / 2 0 2 0 NYSCEF [FILED DOC. : NEW NO. 31 YORK COUNTY CLERK 08/ 2 4 / 2021 05 : 07 PM| RECEIVED NYSCEF: NY S 2 IWEW 6 YORK COUNTY CLERK 08 /10 /2021 10: OS W RECE IVE#lWFS NYSCEF DOC. NO. 24 RECEIVED NYSCEF: D8/10/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART IAS MOTION 35EFM X SHIRLEY PETWAY INDEX NO. 154005/2020 MOTION DATE 04/26/202L - v - MOTION SEQ. NO. 001 NEW YORK CITY HOUSING AUTHORITY, Respondent. DECISION + ORDER ON MOTION x HON. CAROL R. EDMEACk 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 ADJUDOED that the order to show cause of petitioner Shirley Petway (motion sequence number 001) is denied as untimely, and this proceeding is dismissed; and it is further ORDERED that the Clerk of the Court is directed to enter judgment dismissing the proceeding; and it is further ORDERED that counsel for respondent New York Housing Authority shall serve a City copy of this order along with notice of entry on all parties within ten (10) days. 184065E1020 PETWAY, SHIRLEY vs. NEW YoRK CITY HOUSING Page t of s Motion No. 001 1 of 5 2 of 6 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 INDEX NO. 154065/2020 (FILED DOC. NYSCEF : NEW NO. 31 YORK COUNTY CLERK 08 / 2 4 / 2021 05 : 07 PM| RECEIVED NYSCEF: 09/22/2021 NY§gEfLggy: 1933 6YORK COUNTY CLERK 08 (10-72021 RECEIVgBDNSSEF:1!DB)tgig/gU@1 -1-0T00A%0 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/10/2021 In this proceeding, petitioner 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 tunc, on the agency (motics sequence number 001). For the following reasons, her order to show cause is denied. BACKGROUND Petway alleges that, on August 24, 2019, she anatained personal injuries when she tripped and fell on the flooring between the hallway and the bathroom in apartment 2J in a building located at 70 MalcolmX Blvd. in the County, City and State ofNew York. (the building). Bee order to show cause, exhibit D (Petway aff), ¶ 3. Petway is the tenant of record of apartment 2J, and NYCHA is the building's owner. Id., ¶ 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 aM--¾ ¶ 5; exhibit A. NYCHA's counsel responds that the notice of claim was untimely, and argues that Petway's order to show cause should tha=-fam be denied, and this proceeding dismissed. Bee Golde=ith affirmation in opposition, mem of law at 1-2. Petway cor-reed this proceeding via order to show cause on July 30, 2020. See order to show cause, aff of service. NYCHA submitted oppasiden papers on Seg.e=ber 8, 2020. See Golde=ith amrmation in opposition. Petway thereafter served reply papers, and this matter is now fully submitted (motion sequence number 001). DISCUSSION General Municipal Law § 50-e provides, in partinent 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 enmmencement of an action or special proceeding against a public corporation, as defined in the general construction law, or any officer, ppakee or 184065f2020 PETWAY,SHIRLaYvs.NaWYoRKCITYHoUsING Page2ofS MotionNo.001 2 of 5 3 of 6 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 INDEX NO. 154065/2020 NYSCEF [FILED DOC. : NEW NO. 31 YORK COUNTY CLERK 0 8 / 2 4 / 2021 05 : 07 PN| RECEIVED NYSCEF: 09/22/2021 NYMEN: 19fEW6 YORK COUNTY CLERK 0 8 /10 /20 21 10 : ó 8 $ RECEIVEWINAFsë9F: 154PE NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/10/2021 employee thereof, the notice ofclaim shall comply with and be served in accordance with ." the provisions ofthis section within ninety days aper the claim arises; . . General Municipal Law § 50-e (1) (a) (emphasis added). In this case, Petway's potential claim against NYCHA arose when she sualmined her slip and fall injuries on August 24, 2019. See order to show cause, exhibit D (Petway aff),13. However, her counsel avers that Petway's notice of claim was not served on NYCHA until January 15, 2020. Sec order to show cause, Keenan aturmation,1 5; exhibit A. Because the 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 ca January 15, 2020, that notice of claim was clearly intimely. "A timely and sufficient NYCHA." notice of claim is a condition precedent to asserting a tort claim against Davia 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 natimely notice of elaim, her late service will be deemed a mdlity, and her claim will be denied and diaminaea See e.g., Matter of White v New York City Hous. Auth., 38 AD3d 675 (2d Dept 2007). General Municipal Law § 50-e (5) pennits 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 constituting the claim within 90 days fromits accrual or a reasonable time thereafter, whether the petitioner has demonstrated areasonable excuse for failing to serve a timely notice of claim, and whether the delay would substantially prejudice the municipality in merits." maintaining its defense on the Matter of White v New York City Hous. Auth., 38 AD3d at 675-676, citing General lemicipal Law § 50-e (5). However, before the court can proceed to consider those factors, CPLR 403 (d) =qui=s the pet-tioner to first serve the order to show cause seeking leave to serve the late notice of claim 1s40ssf2020 PEiTWAY, aHIRLaY vs. NaW YoRK CITY HOUslNG Page 3 of 5 Mollon No. 001 3 of 5 4 of 6 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 INDEX NYSCEF: NO. 154065/2020 NYSCEF |FILED DOC. : NEW YORK NO. 31 COUNTY CLERK 08/24/2021 05:07 PNj RECEIVED 09/22/2021 N RECEIVBNDEESH0F:1SW65//23JCED1 fggg bYORK COUNTY CLERK 05-/10/ 2-0-21-f0TOB-Kig NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/10/2021 therein" "in a manner specified by the court. The petitioner's failure to do so deprives the court of personal jurisdiction, and warents dismissal ofthe proceeding. See e.g., Matter of Smith v (1" New York County Dist. Attorney's 03, 104 AD3d 559 Dept 2013). Here, the order to show cause which the court signed for Petway on July 24, 2020 specified that: "it is . . . ORDERED that service of a copy of this Order together with the papers upon which it is based, be served upon [NYCHA], 250 Broadway, New York, NY 10007 the 31" respondent herein, by mailing a true copy thereof by regular mail on or before the 2020." day of July, See order to show cause (emphasis added). That order to show cause included four exhibits that Petway's counsel had annexed thereto. However, NYCHA avers that three of those exhibits were omitted from the copy of the order to show cause that Petway served. See Goldsmith ahation in opposition, ¶ 5; exhibit 4. A petitioner's "failure to serve respondent as directed order" by its order to show cause, which required service of the papers supporting the creates a jurir,dictional defect that warrants dismissal of the petition. Matter of Smith v New York County Dist. Attorney's Of, 104 AD3d at 560 (emphasis added). Petway's reply arguments urging the court not to dismiss the petition are unavailing. NYCEF" Counsel's assertion that "the papers were E-filed and the exbibits are on is irrelevant, since the order to show cause did not specify electronic service, but, rather, service by mail of the based."¹ order to show cause and all of "the papers upon which it is See Keenan reply af F_=‡i:-, ¶ 6. Counsel's attempt to factually distinguish the case of Matter of Ruine v Hines [1" (57 AD3d 369 Dept 2008]) is likewise irrelevant, since that case merely discussed the rules of service, but did not involve the service of an incomplete order to show cause, as did Matter of 1 NYCHA's coÃpoints out that one of the three o=itted documents which has been Further, entered onto the NYCEF system is password protected for reasons of confidentiality, and is inaccessible to an unauthorized NYCEF user, with the result that that exhibit is still unavailable to NYCHA. See Goldsmith affirmation in opposition, mem of law at 7. 1s408sf2020 PaTWAY, SHIRLEY vs. NEWYoRK cITYHoUSING Page 4 of 5 Motion No. 001 4 of 5 5 of 6 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 INDEX NO. 154065/2020 FILED NYSCEF NEW DOC. : NO. YORK 31 COUNTY CLERK 08 / 2 4 / 2021 05 RECEIVED NYSCEF: 09/22/2021 -sWYORTOM- : O'7 PM| NY RK 0550 02UWW RECE IVEDIDEESSEE:154ØGS/2551 NYSCEF DOC. N0. 24 RECBIVED NYSCEF: 08/10/202% Smith v New York Dist, Auorney's Keenan amrmatian 19. County Of reply (reply aff, facts" Finally, counsel's repeated assertions that NYCHA "acquired knowledge of the of prejudice" Petway's accident, and that it "suffered no from the late/incomplete service of documenta herein are only relevant to a discussion of the factors listed in General Municipal Law § 50-e (5). However, they are not relevant to a review of the service rule set forth in CPLR 403 (d). Jd., W 4-8, 10-15. Therefore, the court rejects all of Petway's reply arguments. Accordingly, the court deems that Petway's untimely notice of claim is a nullity, and finds that her crder to show cause should be denied, and that this proceeding should be diaminaed. DECISION ACCORDINGLY, for the foregoing reasons it is hereby ADJUDGED that the order to show cause of petitioner Shirley Petway (mation sequence number 001) is denied as untimely, and this proceeding is dimianad; and it is further ORDERED that the Clerk of the Court is directed to enter judgment the diamiaming proceeding; and it is further ORDERED that counsel for respondent New York City Housing Authority shall serve a copy of this order along with notice of entry on all parties within ten (10) days. . 6t23/2021 DATE CAROLR.EDMEAD,J.S.C. CHECK0NE: X eASE DIEPoSED NON-FBIALDISPeSITION GRANTED X DENMD GRANTEDIN PART cTHER APPUCATION: SETTLEORDER SUB1ATORDER CHECKlF APPROPRIATE: INCLUDESTRAN8FERP"mm FBUCIARY APPOGlTHENT REFERENCE 1s406sf2020 PETWAY,SHIALEY vs. NEWYORK CrTvHoUslNG Page 5 of s MotionNo, 001 5 of 5 6 of 6