Preview
FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/22/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----- --------------------------------------------------x
SHIRLEY PETWAY, Index # 154065/2020
Petitioner,
-against-
NEW YORK CITY HOUSING AUTHORITY,
Respondent.
------------------------------------------------------------------x
PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO
REARGUE
1. Petitioner submits this Memorandum of Law in Support of Petitioner's motion for
an Order pursuant to CPLR § 2221 (d), granting Petitioner reargument of her motion to deem
the Notice of Claim served on the New York City Housing Authority on January 15, 2020 as
timely filed nunc pro tunc; and 2) for such other, further and different relief as this Court
deems just, proper, and equitable.
2. This is a claim for personal injuries sustained by petitioner Shirley Petway as a
result of the negligence of respondent New York City Housing Authority in its ownership,
operation, maintenance, management, supervision and control of premises located at 70
Malcom X Boulevard, in the County, City and State of New York, more specifically, Apt. 2J at
said premises.
3. Petitioner Shirley Petway sustained personal injuries on August 24, 2019 when
she tripped and fell during the transition from the hallway to the bathroom of Apt. 2J of
premises located at 70 Malcom X Blvd., in the County, City and State of New York. Petitioner
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was caused to fall due to the dangerous, defective, hazardous, unsafe, broken, uneven, raised,
missing, broken, cracked, poorly maintained, dilapidated, worn and/or depressed flooring at
said location which was owned and operated by New York City Housing Authority. As a result
of the aforementioned fall, petitioner was caused to sustain serious personal injuries including
but not limited to, a fractured hip requiring a total hip replacement as a result of the negligence
of the respondent.
4. On January 13, 2020, Ms. Petway retained our office 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 15, 2020.
5. On June 18, 2020, petitioner e-filed an Order to Show Cause to deem the Notice
of Claim timely filed. On July 24, 2020, the Court signed the Order to Show Cause and
directed that it be mailed to NYCHA. NYCHA e-filed its opposition to the Order to Show
Cause, claiming that the hard copy that was mailed to it was missing exhibits. Petitioner's
application was denied by this Court by Order entered on August 10, 2021, which was served
with Notice of Entry on August 24, 2021. A copy of the Order with Notice of Entry is annexed
"A"
as Exhibit to Keenan Affirmation. The Court denied petitioner's motion based upon
defense counsel's claim that petitioner did not mail a complete copy of her Order to Show
Cause to NYCHA. As set forth more fully below, the Court erred in denying petitioner's motion
because a complete copy of the Order to Show Cause and exhibits was e-filed and thus available
to respondent. In addition, this office filed an affidavit of service stating that the Order to Show
"D"
Cause and exhibits were mailed to NYCHA. See Exhibit to Keenan Affirmation. Petitioner
accordingly requests that her motion be decided on the merits.
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LEGAL ARGUMENT
POINT I
PETITIONER'S MOTION TO REARGUE SHOULD BE GRANTED
6. A motion for leave to reargue pursuâñt to N.Y. C.P.L.R. 2221(d) is addressed to
the sound discretion of the Court and may be granted upon a showing that the Court
overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its
[1St
earlier decision. See William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22 Dept. 1992];
NYCTL 1998-1 Trust v. Rodriguez, 154 AD3d 865 [2d Dept. 2017]. Here, the Court erred in
denying petitioner's motion because a complete copy of the Order to Show Cause and evhibits
was e-filed and thus available to the parties. The only exhibit which was e-filed with
restrictions was petitioner's Hospital Record, which was available for viewing by counsel for
the parties and the Court. There is no password attached to the Hospital record. Petitioner
confirmed that the Hospital Record was available for viewing by counsel for the parties and
"H"
the Court by email to nyscef@nycourts.gov., a copy of which is annexed as Exhibit to
Keenan Affirmation. If defense counsel did not receive an exhibit in the mail as he contends,
or saw that one was missing, he could have checked NYSCEF, where the exhibits had been
filed for two (2) months prior to the service of the opposition papers.
7. In addition, the Court overlooked the fact that Lisa Cuomo, a paralegal in this
office, e-filed an affidavit of service stating that the Order to Show Cause, Affirmation and
"D"
Exhibits were mailed to NYCHA. See Exhibit to Keenan Affirmation. "A properly
occurred."
executed affidavit of service raises a presumption that a proper mailing Engel v.
Lichterman, 62 NY2d 943, 944 [1984]. Where there is an issue of fact as to whether service
was properly effectuated, a traverse hearing is warranted. NYCTL 2012-A Trust v. Colbert,
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[1st
146 AD3d 482 Dept. 2017]. In any event, as set forth above, since all the papers were
e-filed and therefore accessible to respondent, it is petitioner's position that it is not even
necessary to hold a traverse hearing and that her Order to Show Cause should have been
considered on the merits.
8. The Court has the discretion to disregard an error in the filing of papers if a
substantial right of a party is not prejudiced. More specifically, CPLR § 2001 states, as follows:
At any stage of an action, including the filing of a summes with notice, summons and
complaint or petitioñ to commence an action, the court may permit a mistake, emission,
defect or irregularity, including the failure to purchase or acquire an index number or
other mistake in the filing process, to be corrected, upon such terms as may be just, or,
if a substantie! right of a party is not prejudiced, the mistake, omission, defect or
irregularity shall be disregarded, provided that any applicable fees shall be paid.
(Emphasis added) See CPLR § 2001. Here, NYCHA failed to demonstrate that any substantial
right has been prejudiced by any claimed deficiency in the hard copy of the Order to Show
Cause which was served as all the exhibits were available on NYSCEF. Accordingly, any
claimed deficiency in the hard copy of the Order to Show Cause which was served should have
been disregarded.
[1st
9. In Matter of Caro v. James, 41 AD2d 829 Dept. 1973], the Appellate
Division, First Department, affirming the denial of a motion to dismiss a petition stated:
"Regardless of the alleged infirmities in the maññêr of service of the order to show cause, there
was a showing of actual notice to the respondent below, who, in fact, did appear at the court on
cause."
the return date of the order to show This holding is equally applicable to the case at
bar since respondent had actual notice of the Order to Show Cause and the exhibits annexed
thereto and e-filed opposition papers to the Order to Show Cause.
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10. The cases cited by the Court and NYCHA, do not compel a denial of the motion
[1st
on procedural grounds. For example, in Ruine v. Hines, 57 A.D.3d 369 Dept. 2008], the
plaintiff failed to serve one of the parties with the entire Order to Show Cause. See Ruine v.
Hines, 57 AD3d at 370. In addition, although one of the other defendants was served with an
incomplete set of papers, there is no indication that the failure to serve the complete set of
papers on that party was dispositive. Id. Further, there is no indication in Ruine as to what was
missing from the papers whereas here, the missing Affidavit of Mr. John is not prejudicial to
motion.1
NYCHA since the specifies of the Affidavit were spelled out in the Likewise, the
circumstances of Petitioner's hospitalization are set forth in the motion. Finally, there is no
indication that there was e-filing in the year 2008 such that the respondent could just look online
exhibits.2
for the Here, defense counsel is fully familiar with the electronic filing system and
cannot claim that there was no access to the missing exhibits.
11. In addition, none of the cases on which NYCHA relied upon state that the Court
is not permitted to exercise its discretion pursuant to CPLR § 2001 and permit an error with
respect to the service of certain exhibits, especially when there is no prejudice.
12. Petitioner's application to deem the Notice of Claim timely filed should
therefore be granted for the reasons set forth in petitioner's Order to Show Cause. General
Municipal Law § 50-e (5) permits a court to grant a petitioner's request for leave to serve a
late notice of claim. In determining whether to grant leave to serve a late notice of claim, "the
key factors considered are 'whether the movant demonstrated a reasonable excuse for the
The claimed absence o e medical records is ultimately immaterial since NYCHA had notice of the
claim.
2
In Smith v. New York County 559 [155 Dept. 2013], the petitioner
Dist. Attorney's Office, 104 AD3d
did not serve the papers at all. Similarly, in Feldman v. Feldman, [l" Dept.
54 AD3d 372 2008], there is no
indication as to how the petitioner neglected to accomplish service of the papers.
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failure to serve the notice of claim within the statutory time frame, whether the municipality
acquired actual notice of the essential facts of the claim within 90 days after the claim arose or
a reasonable time thereafter, and whether the delay would substantially prejudice the
municipality in its defense. Moreover, the presence or absence of any one factor is not
determinative.'"
Velazquez v. City of New York Health & Hosps. Corp., 69 AD3d 441,442
[1"
Dept. 2010] (citation omitted). As set forth in the Affirmation in support of the Order to
Show Cause, there is no prejudice to the respondent. The underlying facts of the claim became
known to respondent shortly after its occurrence. Petitioner's son Louis John was present in the
apartment when he heard petitioner fall and went to her aid and transported petitioner to the
hospital. Shortly thereafter, he reported the accident to respondent, New York City Housing
Authority, Ms. Roy, the housing assistant in her office at 90 Lenox Avenue, New York, NY.
Respondent did not submit any affidavit from NYCHA refuting the statements in Mr. John's
affidavit that he reported the incident to NYCHA housing assistant, Ms. Roy in early
September 2019 . Furthermore, Ms. Petway has been in and out of the hospital since the date
of the accident and additionally, was not aware of the time limits necessary to file a Notice of
Claim. She was admitted to a nursing and rehabilitation home and was under a lockdown with
no visitors allowed until she was discharged on May 29, 2020 due to the coronavirus pandemic
and executive orders.
13. In view of the foregoing, petitioner requests that her motion to reargue be
granted and upon reargument, her Notice of Claim be deemed timely filed nunc pro tune.
WHEREFORE, Petitioner respectfully requests that the Court issue an Order pursuant
to CPLR § 2221 (d) and (e) , granting Petitioner reargument of her Order to Show Cause to
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deem the Notice of Claim timely filed nunc pro tunc and for such other, further and different
relief as this Court deems just, proper.
Dated: September 22, 2021
New York, New York
ALISON R. KEENAN
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Certification per Rule 202.8-b
ALISON R. KEENAN, hereby certifies that this document complies with the word count
limit included in the Uniform Civil Rules of the Supreme Court and County Court pursuant to
Section 202.8-b. Pursuant to the Counsel relies upon the word count of the word-
rule, hereby
processing system used to prepare this document.
ALISON R. KEENAN, hereby certifies that this document contains 1926 words,
excluding the words contained in the caption, table of contents, table of authorities, and signature
block.
Certified by:
ALISON R. KEENAN
9-22-2021
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Preview
FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/22/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----- --------------------------------------------------x SHIRLEY PETWAY, Index # 154065/2020 Petitioner, -against- NEW YORK CITY HOUSING AUTHORITY, Respondent. ------------------------------------------------------------------x PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO REARGUE 1. Petitioner submits this Memorandum of Law in Support of Petitioner's motion for an Order pursuant to CPLR § 2221 (d), granting Petitioner reargument of her motion to deem the Notice of Claim served on the New York City Housing Authority on January 15, 2020 as timely filed nunc pro tunc; and 2) for such other, further and different relief as this Court deems just, proper, and equitable. 2. This is a claim for personal injuries sustained by petitioner Shirley Petway as a result of the negligence of respondent New York City Housing Authority in its ownership, operation, maintenance, management, supervision and control of premises located at 70 Malcom X Boulevard, in the County, City and State of New York, more specifically, Apt. 2J at said premises. 3. Petitioner Shirley Petway sustained personal injuries on August 24, 2019 when she tripped and fell during the transition from the hallway to the bathroom of Apt. 2J of premises located at 70 Malcom X Blvd., in the County, City and State of New York. Petitioner 1 1 of 8 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/22/2021 was caused to fall due to the dangerous, defective, hazardous, unsafe, broken, uneven, raised, missing, broken, cracked, poorly maintained, dilapidated, worn and/or depressed flooring at said location which was owned and operated by New York City Housing Authority. As a result of the aforementioned fall, petitioner was caused to sustain serious personal injuries including but not limited to, a fractured hip requiring a total hip replacement as a result of the negligence of the respondent. 4. On January 13, 2020, Ms. Petway retained our office 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 15, 2020. 5. On June 18, 2020, petitioner e-filed an Order to Show Cause to deem the Notice of Claim timely filed. On July 24, 2020, the Court signed the Order to Show Cause and directed that it be mailed to NYCHA. NYCHA e-filed its opposition to the Order to Show Cause, claiming that the hard copy that was mailed to it was missing exhibits. Petitioner's application was denied by this Court by Order entered on August 10, 2021, which was served with Notice of Entry on August 24, 2021. A copy of the Order with Notice of Entry is annexed "A" as Exhibit to Keenan Affirmation. The Court denied petitioner's motion based upon defense counsel's claim that petitioner did not mail a complete copy of her Order to Show Cause to NYCHA. As set forth more fully below, the Court erred in denying petitioner's motion because a complete copy of the Order to Show Cause and exhibits was e-filed and thus available to respondent. In addition, this office filed an affidavit of service stating that the Order to Show "D" Cause and exhibits were mailed to NYCHA. See Exhibit to Keenan Affirmation. Petitioner accordingly requests that her motion be decided on the merits. 2 2 of 8 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/22/2021 LEGAL ARGUMENT POINT I PETITIONER'S MOTION TO REARGUE SHOULD BE GRANTED 6. A motion for leave to reargue pursuâñt to N.Y. C.P.L.R. 2221(d) is addressed to the sound discretion of the Court and may be granted upon a showing that the Court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its [1St earlier decision. See William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22 Dept. 1992]; NYCTL 1998-1 Trust v. Rodriguez, 154 AD3d 865 [2d Dept. 2017]. Here, the Court erred in denying petitioner's motion because a complete copy of the Order to Show Cause and evhibits was e-filed and thus available to the parties. The only exhibit which was e-filed with restrictions was petitioner's Hospital Record, which was available for viewing by counsel for the parties and the Court. There is no password attached to the Hospital record. Petitioner confirmed that the Hospital Record was available for viewing by counsel for the parties and "H" the Court by email to nyscef@nycourts.gov., a copy of which is annexed as Exhibit to Keenan Affirmation. If defense counsel did not receive an exhibit in the mail as he contends, or saw that one was missing, he could have checked NYSCEF, where the exhibits had been filed for two (2) months prior to the service of the opposition papers. 7. In addition, the Court overlooked the fact that Lisa Cuomo, a paralegal in this office, e-filed an affidavit of service stating that the Order to Show Cause, Affirmation and "D" Exhibits were mailed to NYCHA. See Exhibit to Keenan Affirmation. "A properly occurred." executed affidavit of service raises a presumption that a proper mailing Engel v. Lichterman, 62 NY2d 943, 944 [1984]. Where there is an issue of fact as to whether service was properly effectuated, a traverse hearing is warranted. NYCTL 2012-A Trust v. Colbert, 3 of 8 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/22/2021 [1st 146 AD3d 482 Dept. 2017]. In any event, as set forth above, since all the papers were e-filed and therefore accessible to respondent, it is petitioner's position that it is not even necessary to hold a traverse hearing and that her Order to Show Cause should have been considered on the merits. 8. The Court has the discretion to disregard an error in the filing of papers if a substantial right of a party is not prejudiced. More specifically, CPLR § 2001 states, as follows: At any stage of an action, including the filing of a summes with notice, summons and complaint or petitioñ to commence an action, the court may permit a mistake, emission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantie! right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid. (Emphasis added) See CPLR § 2001. Here, NYCHA failed to demonstrate that any substantial right has been prejudiced by any claimed deficiency in the hard copy of the Order to Show Cause which was served as all the exhibits were available on NYSCEF. Accordingly, any claimed deficiency in the hard copy of the Order to Show Cause which was served should have been disregarded. [1st 9. In Matter of Caro v. James, 41 AD2d 829 Dept. 1973], the Appellate Division, First Department, affirming the denial of a motion to dismiss a petition stated: "Regardless of the alleged infirmities in the maññêr of service of the order to show cause, there was a showing of actual notice to the respondent below, who, in fact, did appear at the court on cause." the return date of the order to show This holding is equally applicable to the case at bar since respondent had actual notice of the Order to Show Cause and the exhibits annexed thereto and e-filed opposition papers to the Order to Show Cause. 4 of 8 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/22/2021 10. The cases cited by the Court and NYCHA, do not compel a denial of the motion [1st on procedural grounds. For example, in Ruine v. Hines, 57 A.D.3d 369 Dept. 2008], the plaintiff failed to serve one of the parties with the entire Order to Show Cause. See Ruine v. Hines, 57 AD3d at 370. In addition, although one of the other defendants was served with an incomplete set of papers, there is no indication that the failure to serve the complete set of papers on that party was dispositive. Id. Further, there is no indication in Ruine as to what was missing from the papers whereas here, the missing Affidavit of Mr. John is not prejudicial to motion.1 NYCHA since the specifies of the Affidavit were spelled out in the Likewise, the circumstances of Petitioner's hospitalization are set forth in the motion. Finally, there is no indication that there was e-filing in the year 2008 such that the respondent could just look online exhibits.2 for the Here, defense counsel is fully familiar with the electronic filing system and cannot claim that there was no access to the missing exhibits. 11. In addition, none of the cases on which NYCHA relied upon state that the Court is not permitted to exercise its discretion pursuant to CPLR § 2001 and permit an error with respect to the service of certain exhibits, especially when there is no prejudice. 12. Petitioner's application to deem the Notice of Claim timely filed should therefore be granted for the reasons set forth in petitioner's Order to Show Cause. General Municipal Law § 50-e (5) permits a court to grant a petitioner's request for leave to serve a late notice of claim. In determining whether to grant leave to serve a late notice of claim, "the key factors considered are 'whether the movant demonstrated a reasonable excuse for the The claimed absence o e medical records is ultimately immaterial since NYCHA had notice of the claim. 2 In Smith v. New York County 559 [155 Dept. 2013], the petitioner Dist. Attorney's Office, 104 AD3d did not serve the papers at all. Similarly, in Feldman v. Feldman, [l" Dept. 54 AD3d 372 2008], there is no indication as to how the petitioner neglected to accomplish service of the papers. 5 5 of 8 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/22/2021 failure to serve the notice of claim within the statutory time frame, whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense. Moreover, the presence or absence of any one factor is not determinative.'" Velazquez v. City of New York Health & Hosps. Corp., 69 AD3d 441,442 [1" Dept. 2010] (citation omitted). As set forth in the Affirmation in support of the Order to Show Cause, there is no prejudice to the respondent. The underlying facts of the claim became known to respondent shortly after its occurrence. Petitioner's son Louis John was present in the apartment when he heard petitioner fall and went to her aid and transported petitioner to the hospital. Shortly thereafter, he reported the accident to respondent, New York City Housing Authority, Ms. Roy, the housing assistant in her office at 90 Lenox Avenue, New York, NY. Respondent did not submit any affidavit from NYCHA refuting the statements in Mr. John's affidavit that he reported the incident to NYCHA housing assistant, Ms. Roy in early September 2019 . Furthermore, Ms. Petway has been in and out of the hospital since the date of the accident and additionally, was not aware of the time limits necessary to file a Notice of Claim. She was admitted to a nursing and rehabilitation home and was under a lockdown with no visitors allowed until she was discharged on May 29, 2020 due to the coronavirus pandemic and executive orders. 13. In view of the foregoing, petitioner requests that her motion to reargue be granted and upon reargument, her Notice of Claim be deemed timely filed nunc pro tune. WHEREFORE, Petitioner respectfully requests that the Court issue an Order pursuant to CPLR § 2221 (d) and (e) , granting Petitioner reargument of her Order to Show Cause to 6 6 of 8 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/22/2021 deem the Notice of Claim timely filed nunc pro tunc and for such other, further and different relief as this Court deems just, proper. Dated: September 22, 2021 New York, New York ALISON R. KEENAN 7 7 of 8 FILED: NEW YORK COUNTY CLERK 09/22/2021 12:53 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/22/2021 Certification per Rule 202.8-b ALISON R. KEENAN, hereby certifies that this document complies with the word count limit included in the Uniform Civil Rules of the Supreme Court and County Court pursuant to Section 202.8-b. Pursuant to the Counsel relies upon the word count of the word- rule, hereby processing system used to prepare this document. ALISON R. KEENAN, hereby certifies that this document contains 1926 words, excluding the words contained in the caption, table of contents, table of authorities, and signature block. Certified by: ALISON R. KEENAN 9-22-2021 8 of 8