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FILED: NEW YORK COUNTY CLERK 08/24/2021 04:56 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 25 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,
N_OTICE OF ENTRY
-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, 201
KREZ & EL RES, LLP
JO A AN GOLDSMITH
A o ys for Defendant
N YORK CITY HOUSING
AUTHORITY
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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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART IAS MOTION 35EFM
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SHIRLEY PETWAY INDEX NO. 154065/2020
Petitioner,
MOTION DATE 04/26/2021
- v -
MOTION SEQ. NO. 001
NEW YORK CITY HOUSING AUTHORITY,
Respondent.
DECISION + ORDER ON
MOTION
---------------------------------------------X
HON. CAROL R. EDMEAD:
The fs::óvv;ñ9 e-filed dccuriieñts, 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 that the order to show cause of petitioner Shirley Petway (motion sequence
number 001) is denied as untimely, and this proceeding is disiñissed, 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 City Housing Authority shall serve a
copy of this order along with notice of entry on all parties within ten (10) days.
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In this proceeding, petiti0ñer 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 dered to have been timely served, nunc pro tune, on the agency
(motion sequence number 001). For the following reasona, her order to show cause is deled.
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 building
located at 70 Malcolm X Blvd. in the County, City and State of New York. (the building). See
order to show cause, evhlbit 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 affirmation, ¶ 5; 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 proceeding dis-dssed. See GoldsMth affirmation in opposition,
mem of law at 1-2.
Petway cc=cnced this preceeding via order to show cause on July 30, 2020. See order
to show cause, aff of service. NYCHA submitted opposition papers on September 8, 2020. See
Coldsmith affirmation in opposition. Petway thereafter served papers, and this matter is
reply
now fully submitted (motion sequence number 001).
DISCUSSION
General Municipal Law § 50-e provides, 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 proceeding against a
public corporation, as defined in the general construction law, or any officer, appointee or
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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 after 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 injuries on August 24, 2019. See
order to show cause, exhibit D (Petway aff), ¶ 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 the date 90 days aller 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 untimely. "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 untimely notice of claim, her late service will be deemed a nullity, and
her claim will be denied and dismissed. 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 constituting the claim within 90 days from its accrual 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."
maintaining 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
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therein"
"in a manner specified by the court. The petitioner's failure to do so deprives the court
of personal jurisdictión, and warrants dismissal of the prnceeding. See e.g., Matter of Smith v
(1st
New York County Dist. Attorney's Of, 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't
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
affirmation 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
jurisdictional defect that warrants missal 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 exhibits are on is irrelevant,
since the order to show cause did not specify electronic service, but, rather, service by mail of the
based." I
order to show cause and all of "the papers upon which it is See Keenan reply
affirmation, ¶ 6. Counsel's attempt to factually distinguish the case of Matter of Ruine v Hines
[1't
(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
Further, NYCHA's counsel points out that one of the three omitted documents which has been
entered onto the NYCEF system is password protected for reasons of confidentiality, and is
inaccessible to an ==±orized NYCEF user, with the result that that exhibit is still üñavailabic
to NYCHA. See Góldsmith affinnation in opposition, mem of law at 7.
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Smith v New York County Dist. Attorney's Of Keenan reply affirmanon, (reply aff, ¶ 9.
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
documents 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). Id., ¶¶ 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 order to show cause should be denied, and that this proceeding should be die=Jssed.
DECISION
ACCORDINGLY, for the foregoing reasons it is hereby
ADJUDGED that the order to show cause of petidoner Shirley Petway (motion seqácace
ñumber 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 judgmcat dismJssing the
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.
707 o Ab888 06AA2CFD
6/23/2021
DATE CAROL R. EDMEAD, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDESTRANSFER/REASSIGN FIDUCIARYAPPOINTMENT REFERENCE
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Preview
FILED: NEW YORK COUNTY CLERK 08/24/2021 04:56 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 25 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, N_OTICE OF ENTRY -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, 201 KREZ & EL RES, LLP JO A AN GOLDSMITH A o ys for Defendant N YORK CITY HOUSING AUTHORITY 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 08/24/2021 04:56 PM INDEX NO. 154065/2020 INDEX NO. 154065/2020 NYSCEF NEW25 YORK FILED:DOC. NO. COUNTY CLERK 08/10/2021 10:08 AM) RECEIVED NYSCEF: 08/24/2021 N-f5CEF DOC. NO. 24 RECEIVED NYSCEF: 08/10/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART IAS MOTION 35EFM -----·-------------------------------------------X SHIRLEY PETWAY INDEX NO. 154065/2020 Petitioner, MOTION DATE 04/26/2021 - v - MOTION SEQ. NO. 001 NEW YORK CITY HOUSING AUTHORITY, Respondent. DECISION + ORDER ON MOTION ---------------------------------------------X HON. CAROL R. EDMEAD: The fs::óvv;ñ9 e-filed dccuriieñts, 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 that the order to show cause of petitioner Shirley Petway (motion sequence number 001) is denied as untimely, and this proceeding is disiñissed, 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 City Housing Authority shall serve a copy of this order along with notice of entry on all parties within ten (10) days. 154065/2020 PETWAY, SHIRLEY vs. NEW YORK CITY HOUSING Page 1 of 5 MotionNo. 001 1 of 5 2 of 6 FILED: NEW YORK COUNTY CLERK 08/24/2021 04:56 PM INDEX NO. 154065/2020 NYSCEF INDEX NO. 154065/2020 [FILED: DOC. NO. NEW25 YORK COUNTY CLERK 08 /10 / 2021 10 : 08 RECEIVED NYSCEF: 08/24/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/10/2021 In this proceeding, petiti0ñer 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 dered to have been timely served, nunc pro tune, on the agency (motion sequence number 001). For the following reasona, her order to show cause is deled. 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 building located at 70 Malcolm X Blvd. in the County, City and State of New York. (the building). See order to show cause, evhlbit 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 affirmation, ¶ 5; 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 proceeding dis-dssed. See GoldsMth affirmation in opposition, mem of law at 1-2. Petway cc=cnced this preceeding via order to show cause on July 30, 2020. See order to show cause, aff of service. NYCHA submitted opposition papers on September 8, 2020. See Coldsmith affirmation in opposition. Petway thereafter served papers, and this matter is reply now fully submitted (motion sequence number 001). DISCUSSION General Municipal Law § 50-e provides, 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 proceeding against a public corporation, as defined in the general construction law, or any officer, appointee or 154065/2020 PETWAY, SHIRLEY vs. NEW YORK CITY HOUSING Page 2 of 5 Motion No. 001 2 of 5 3 of 6 FILED: NEW YORK COUNTY CLERK 08/24/2021 04:56 PM INDEX NO. 154065/2020 NYSCEF |FILED:DOC. NO. NEW25 YORK COUNTY CLERK 08 /10 /2021 10 : 0 8 $ INDEX RECEIVED NO. NYSCEF: 154065/2020 08/24/2021 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 after 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 injuries on August 24, 2019. See order to show cause, exhibit D (Petway aff), ¶ 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 the date 90 days aller 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 untimely. "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 untimely notice of claim, her late service will be deemed a nullity, and her claim will be denied and dismissed. 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 constituting the claim within 90 days from its accrual 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." maintaining 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 154065/2020 PETWAY, SHIRLEY vs. NEW YORK CITY HOUSING Page 3 of 5 Motion No. 001 3 of 5 4 of 6 FILED: NEW YORK COUNTY CLERK 08/24/2021 04:56 PM INDEX NO. 154065/2020 NYSCEF INDEX [FILED DOC. : NO. NEW 25YORK COUNTY CLERK 08 /10 /2 021 10 : 08 AM| RECEIVED NYSCEF: NO. 08/24/2021 154065/2020 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 jurisdictión, and warrants dismissal of the prnceeding. See e.g., Matter of Smith v (1st New York County Dist. Attorney's Of, 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't 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 affirmation 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 jurisdictional defect that warrants missal 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 exhibits are on is irrelevant, since the order to show cause did not specify electronic service, but, rather, service by mail of the based." I order to show cause and all of "the papers upon which it is See Keenan reply affirmation, ¶ 6. Counsel's attempt to factually distinguish the case of Matter of Ruine v Hines [1't (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 Further, NYCHA's counsel points out that one of the three omitted documents which has been entered onto the NYCEF system is password protected for reasons of confidentiality, and is inaccessible to an ==±orized NYCEF user, with the result that that exhibit is still üñavailabic to NYCHA. See Góldsmith affinnation in opposition, mem of law at 7. 154065/2020 PETWAY, SHIRLEY vs. NEW YORK CITY HOUSING Page 4 of 5 Motion No. 001 4 of 5 5 of 6 FILED: NEW YORK COUNTY CLERK 08/24/2021 04:56 PM INDEX NO. 154065/2020 NYSCEF INDEX NO. 154065/2020 |FILEDDOC.: NO. NEW25 YORK COUNTY CLERK 0 8 /10 / 2 0 2 1 10 : 0 8 Al RECEIVED NYSCEF: 08/24/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/10/2021 Smith v New York County Dist. Attorney's Of Keenan reply affirmanon, (reply aff, ¶ 9. 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 documents 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). Id., ¶¶ 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 order to show cause should be denied, and that this proceeding should be die=Jssed. DECISION ACCORDINGLY, for the foregoing reasons it is hereby ADJUDGED that the order to show cause of petidoner Shirley Petway (motion seqácace ñumber 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 judgmcat dismJssing the 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. 707 o Ab888 06AA2CFD 6/23/2021 DATE CAROL R. EDMEAD, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDESTRANSFER/REASSIGN FIDUCIARYAPPOINTMENT REFERENCE 154065/2020 PETWAY, SHIRLEY vs. NEW YORK CITY HOUSING Page 5 of 5 Motion No. 001 5 of 5 6 of 6