Preview
FILED: NEW YORK COUNTY CLERK 06/18/2020 10:53 AM INDEX NO. 154065/2020
NYSCEF NO.
INDEXNYSCEF: 154065/2020
FILED DOC. : NO.
NEW 3 YORK COUNTY CLE1Ut-U-6718 f2-0-2-0-10 :5T-_3 RECEIVED 07/23/2020
NYSCEF DOC. No. 3 RECEIVED NYSCEF: 06/18/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
SHIRLEY PETWAY, Index #
15/,065/2020
Petitioner,
AFFIRMATION
-against-
NEW YORK CITY HOUSING AUTHORITY,
Respondent.
x
ALISON R. KEENAN an attcmey duly admitted to practice law in the
Courts of the State of New York, affirms the truth of the following under the
penalties of perjury:
1. I am an attomey in the law firm of BURNS & HARRIS, ESQS.,
attorneys for the petitioner in the capticned matter and am fully familiar with
the facts and circumstances herein based upon my eview of the file
maintained in this office.
2. I submit this Affirmation in support of the instant motion for an
Order granting the Notice of Claim filed upon NEW YORK CITY HOUSING
AUTHORITY on January 15, 2020, deemed timely filed nunc pro tunc.
3 This is a claim for personal injuries sustained by claimant,
SHIRLEY PETWAY as a result of the negilgence of the respondent NEW
YORK CITY HOUSING AUTHORITY in its ownership, operation,
maintenance, management, supervision and control of premises located at 70
Malcolm X Boulevard, in the County, City and State of New York, more
specifically Apt. 2J at said premises.
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4. The claimant sustained personal injuries when she tripped and
fellduring the transition from the hallway to the bathroom of Apt. 2J of
premises located at 70 Malcolm X Blvd., in the County, City and State of New
York. Claimant was caused to fall due to the dangerous, defective,
hazardous, unsafe, broken, uneven, raised, missing, broken, cracked, poorly
maintained, dilapidated, wom 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.
5. On Januasy 13, 2020, Petitioner SHIRLEY PE1WAY stained
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. A copy of the Notice of
Claim is annexed hereto as Exhibit "A".
THERE IS NO PRE JUDICE TO THE RESPONDENT
6. The petitioner herein has been in and out of the hospital since
the date of accident and additionally, the petitioner was not aware of the time
limits necessary to file a Notice of Claim. Further, Ms. Petway was admitted
to a nursing and rehabilitation home and was under a lockdown with no
visitors allowed until she was discharged on May 298, 2020 due to the
"B"
coronavirus pandemic and executive orders. Attached hereto as Exhibit
is a copy of Ms. Petway's hospital record. There is no prejudice against the
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respondents herein. Furthermore, the underlying facts of the claim became
known to respondent shortly after itsoccurrence. Petitioner's son Louis John
was present in the apartment when he heard petitioner fall and went to her
aide and transported petitioner to Harlem Hospital. Shortly thereafter Mr.
Louis John reported the accident to respondent, NEW YORK CITY HOUSING
AUTHORITY, Ms. Roy, the housing assistant in her office at 90 Lenox
"C"
Avenue, New York, NY. Attached hereto as Exhibit is an affidavit from
Louis John.
7. In Lopez v. New YorkCity Housina Authority. 225 A.D.2d 492,
(1st court
639 N.Y.S.2d 389 Dept. March 1998), the court held that the lower
did not improvidently exercise itsdiscretion in permitting petitioner to filea
notice of claim six and one-half months after his accident as he did not
ascertain the severity of his injury until three months after the accident, and
the underlying facts of the claim became known to respondent shortly after
the expiration of the 90-day statutory Eme period. The court further added
that even ifthe condition which caused the accident - the lack of
allegedly
handrails on a staircase - had itwas that respondent, a
changed, likely
housing authority, had made the change or made a record of L jd.
8. Similarly, the court found In the Matter of Nicholas Annis v. New
(1st Dept.
York City Transit Authority. 108 A.D.2d 643, 485 N.Y.S.2d 529
1985), that because the authority had actual knowledge of the occurrence, no
prejudice resulted to itfrom the two-day delay in serving a notice of claim
which, the passenger alleged, was not filedearlier because he initially
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believed that his injury was relatively minor, but itlater became progressively
worse. The court further found that the issue relating to whether the
passenger was actually injured in the derailment was to be determined in the
action and was not a requisite to the filingof a notice of claim. jg.
9. In the present case at hand, petitioner's son told respondent of
the accident, see Exhibit "C". Respondent knew of the underlying facts right
away. There would be no substantial prejudice to respondent.
10. In the Matter of Gerzel v. New York City Health & Hospitals
SQL117 A.D.2d 549, 499 N.Y.S.2d 60 (1st Dept. 1986), the Court stated
that "counsel's failure to present a more reasonable explanation is without
prejudice."
significance given...the City's failure to show substantial See
Medical 153 (2"8
Rechenbemer v. Nassau County Center. 1121 A.D.2d 150,
Dept. 1985).
11. The delay in filing the Notice of Claim, in this case did not
substantially prejudice Respondent's ability to defend on the merits. See,
Gerzel.su pra. The Court in Gp zgl held:
"The only legitimate purpose served by Section
50(e) is to protect the public corporation against
spurious claims and to assure it 'an adequate
opportunity...to explore the merits of the claim
available'."
while information is stillreadily Teresta
v. NEW YORK CITY HEALTH & HOSPITALS
, 304 N.Y.440, 108 N.E.2d 397 (1952);
Gerzel v, NEW YORK CITY HEALTH &
HOSPITAL,S CORP,,supra.
The Cout1s have further held:
"...Section 50(e) empowers the courts to evaluate
requests for relief from the 90 day filing requirement by
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striking an 'equitable balance...between a public
cor poration's reasonable need for prompt notification of
claims against itand an injured party's interest in just
compensation'."
Heiman v. NEW YORK CITY HEALTH &
HOSPITALS CORP.. 85 A.D.2d 25, 28 447 N.Y.S.2d 258
(1st Dept. 1982); Gerzel v. NEW YORK CITY HEALTH &
.tiQSElIALS qQBE, gµ_pjgg..
12. The within motion is made within one year and 90 days after the
date of the incident. See Torlorici v. East Rockaway Public School District No.
335(2"8
19, 191 A.D.2d 495, 594 N.Y.S.2d Dept., 1993); Ambrosano v.
(3"'
Canaloharle. Central School District. 174 A.D.2d 914, 571 N.Y.S.2d 612
Dept.,1991); Friedman v. Svosset Central Schoci District. 154 A.D.2d 337,
(2nd
545 N.Y.S.814 Dept. 1989).
13. It is respectfully submitted that a reasonable explanation for
untime!!ness must be considered, together with allof the relevant factors in
deciding whether to grant the extension. In Buono v. City of New York. 240
(2nd
A.D.2d 689 Dept. 1997), the Court stated:
"although the excuse tendered by Mr. Buono for
a failure to serve a Notice of Claim within the
prescribed time is tenuous, this factor alone
does not warrant denial of the instant
application."
14. Similarly, in Reisse v. County of Nassau. 141 A.D.2d 649, 529
(2nd relevant facts must be
N.Y.S.2d 371 Dept. 1988), the Court stated that all
considered despite the fact that "the reasonableness of the Petitioner's
debatable."
excuse of the delay is
15. The Court of Ap peals held in Bearv v. City of Rye. 44 N.Y.2d 398,
408 N.Y.2d 9, 377 N.E.2d 435 (1978), that the standards of Sec. 50(e)(a) of
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the General Municipal Law were modified by the Legislature so that the
grounds upon which a court may allow late filing were expanded and the time
within which an application for such relief can be made was lengthened.
16. The Court went on to say that the standards of Sec. 50(e) are
far more classic. in substance, they require a court to consider not only the
factors to which itwas formerly limited, but other newly specified ones, along
circumstances."
with "all other relevant facts and Moreover, in deciding
whether to exercise Itsdiscretion, the Court's attention is also focused upon
whether the public corporation or those acting for it, acquired actual
knowledge of the essential facts of the claim within the ninety-day period or a
reasonable Sme thereafter. See Winzel v. County of Suffolk, 92 A.D.2d 545,
(2nd Citvof York,92 .D.2d
459 N.Y.2d 112 Dept 1983); Ansaldo v. New 557,
(2nd
459 N.Y.S.2d 302 Dept. 1983).
17. The delay in filing the Notice of Claim, in this case did not
substantially prejudice Respondent's ability to defend on the merits.
18. Hence, since there is no prejudice to the respondent, and
claimant brought this application expeditiously, this Honorable Court should
grant the relief sought herein.
19. Claimant would be extremely prejudiced were this application
denied, in that itwould prevent her from bringing a meritorious action as a
result of the negligence of the respondent
"D"
21. Annexed hereto as Exhibit is an Affidavit of the Petitioner
In further support of this application.
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22. No prior application for the relief sought herein has been made.
23. It is respectfully requested that an Order be granted herein
per!"!rg the Notice of Claim served upon the respondent be deemed timely
served nunc pro tunc.
WHEREFORE, itis requested that the instant Order to
respectfu||y
Show Cause be in all respects granted, and for other and further relief as to
this court may seem just and proper.
Dated: New York, NY
June 5, 2020
ALISON R. KEENAN
.
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Preview
FILED: NEW YORK COUNTY CLERK 06/18/2020 10:53 AM INDEX NO. 154065/2020 NYSCEF NO. INDEXNYSCEF: 154065/2020 FILED DOC. : NO. NEW 3 YORK COUNTY CLE1Ut-U-6718 f2-0-2-0-10 :5T-_3 RECEIVED 07/23/2020 NYSCEF DOC. No. 3 RECEIVED NYSCEF: 06/18/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X SHIRLEY PETWAY, Index # 15/,065/2020 Petitioner, AFFIRMATION -against- NEW YORK CITY HOUSING AUTHORITY, Respondent. x ALISON R. KEENAN an attcmey duly admitted to practice law in the Courts of the State of New York, affirms the truth of the following under the penalties of perjury: 1. I am an attomey in the law firm of BURNS & HARRIS, ESQS., attorneys for the petitioner in the capticned matter and am fully familiar with the facts and circumstances herein based upon my eview of the file maintained in this office. 2. I submit this Affirmation in support of the instant motion for an Order granting the Notice of Claim filed upon NEW YORK CITY HOUSING AUTHORITY on January 15, 2020, deemed timely filed nunc pro tunc. 3 This is a claim for personal injuries sustained by claimant, SHIRLEY PETWAY as a result of the negilgence of the respondent NEW YORK CITY HOUSING AUTHORITY in its ownership, operation, maintenance, management, supervision and control of premises located at 70 Malcolm X Boulevard, in the County, City and State of New York, more specifically Apt. 2J at said premises. 1 of 7 1 of 7 FILED: NEW YORK COUNTY CLERK 06/18/2020 10:53 AM INDEX NO. 154065/2020 NYSCEF INDEXNYSCEF: No. 154065/2020 FILED DOC. : NO. NEW 3 YORK COUNTY CLERK : 5 RECEIVED 07/23/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2020 4. The claimant sustained personal injuries when she tripped and fellduring the transition from the hallway to the bathroom of Apt. 2J of premises located at 70 Malcolm X Blvd., in the County, City and State of New York. Claimant was caused to fall due to the dangerous, defective, hazardous, unsafe, broken, uneven, raised, missing, broken, cracked, poorly maintained, dilapidated, wom 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. 5. On Januasy 13, 2020, Petitioner SHIRLEY PE1WAY stained 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. A copy of the Notice of Claim is annexed hereto as Exhibit "A". THERE IS NO PRE JUDICE TO THE RESPONDENT 6. The petitioner herein has been in and out of the hospital since the date of accident and additionally, the petitioner was not aware of the time limits necessary to file a Notice of Claim. Further, Ms. Petway was admitted to a nursing and rehabilitation home and was under a lockdown with no visitors allowed until she was discharged on May 298, 2020 due to the "B" coronavirus pandemic and executive orders. Attached hereto as Exhibit is a copy of Ms. Petway's hospital record. There is no prejudice against the 2 of 7 2 of 7 FILED: NEW YORK COUNTY CLERK 06/18/2020 10:53 AM INDEX NO. 154065/2020 NYSCEF INDEXNYSCEF: NO. 154065/2020 FILED: DOC. NO. NEW 3 YORK COUNTY CLERK 0 6/ 18 /2020 10 : 53 AM| RECEIVED 07/23/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2020 respondents herein. Furthermore, the underlying facts of the claim became known to respondent shortly after itsoccurrence. Petitioner's son Louis John was present in the apartment when he heard petitioner fall and went to her aide and transported petitioner to Harlem Hospital. Shortly thereafter Mr. Louis John reported the accident to respondent, NEW YORK CITY HOUSING AUTHORITY, Ms. Roy, the housing assistant in her office at 90 Lenox "C" Avenue, New York, NY. Attached hereto as Exhibit is an affidavit from Louis John. 7. In Lopez v. New YorkCity Housina Authority. 225 A.D.2d 492, (1st court 639 N.Y.S.2d 389 Dept. March 1998), the court held that the lower did not improvidently exercise itsdiscretion in permitting petitioner to filea notice of claim six and one-half months after his accident as he did not ascertain the severity of his injury until three months after the accident, and the underlying facts of the claim became known to respondent shortly after the expiration of the 90-day statutory Eme period. The court further added that even ifthe condition which caused the accident - the lack of allegedly handrails on a staircase - had itwas that respondent, a changed, likely housing authority, had made the change or made a record of L jd. 8. Similarly, the court found In the Matter of Nicholas Annis v. New (1st Dept. York City Transit Authority. 108 A.D.2d 643, 485 N.Y.S.2d 529 1985), that because the authority had actual knowledge of the occurrence, no prejudice resulted to itfrom the two-day delay in serving a notice of claim which, the passenger alleged, was not filedearlier because he initially 3 of 7 3 of 7 FILED: NEW YORK COUNTY CLERK 06/18/2020 10:53 AM INDEX NO. 154065/2020 NYSCEF NO. INDEXNYSCEF: 154065/2020 FILED DOC. : NO. NEW 3 YORK COUNTY CLERK : 5 RECEIVED 07/23/2020 NYSCEF DOC. No. 3 RECEIVED NYSCEF: 06/18/2020 believed that his injury was relatively minor, but itlater became progressively worse. The court further found that the issue relating to whether the passenger was actually injured in the derailment was to be determined in the action and was not a requisite to the filingof a notice of claim. jg. 9. In the present case at hand, petitioner's son told respondent of the accident, see Exhibit "C". Respondent knew of the underlying facts right away. There would be no substantial prejudice to respondent. 10. In the Matter of Gerzel v. New York City Health & Hospitals SQL117 A.D.2d 549, 499 N.Y.S.2d 60 (1st Dept. 1986), the Court stated that "counsel's failure to present a more reasonable explanation is without prejudice." significance given...the City's failure to show substantial See Medical 153 (2"8 Rechenbemer v. Nassau County Center. 1121 A.D.2d 150, Dept. 1985). 11. The delay in filing the Notice of Claim, in this case did not substantially prejudice Respondent's ability to defend on the merits. See, Gerzel.su pra. The Court in Gp zgl held: "The only legitimate purpose served by Section 50(e) is to protect the public corporation against spurious claims and to assure it 'an adequate opportunity...to explore the merits of the claim available'." while information is stillreadily Teresta v. NEW YORK CITY HEALTH & HOSPITALS , 304 N.Y.440, 108 N.E.2d 397 (1952); Gerzel v, NEW YORK CITY HEALTH & HOSPITAL,S CORP,,supra. The Cout1s have further held: "...Section 50(e) empowers the courts to evaluate requests for relief from the 90 day filing requirement by 4 of 7 4 of 7 FILED: NEW YORK COUNTY CLERK 06/18/2020 10:53 AM INDEX NO. 154065/2020 NYSCEF INDEXNYSCEF: NO. 154065/2020 FILED: DOC. NO. NEW 3 YORK COUNTY CLERK : RECEIVED 07/23/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2020 striking an 'equitable balance...between a public cor poration's reasonable need for prompt notification of claims against itand an injured party's interest in just compensation'." Heiman v. NEW YORK CITY HEALTH & HOSPITALS CORP.. 85 A.D.2d 25, 28 447 N.Y.S.2d 258 (1st Dept. 1982); Gerzel v. NEW YORK CITY HEALTH & .tiQSElIALS qQBE, gµ_pjgg.. 12. The within motion is made within one year and 90 days after the date of the incident. See Torlorici v. East Rockaway Public School District No. 335(2"8 19, 191 A.D.2d 495, 594 N.Y.S.2d Dept., 1993); Ambrosano v. (3"' Canaloharle. Central School District. 174 A.D.2d 914, 571 N.Y.S.2d 612 Dept.,1991); Friedman v. Svosset Central Schoci District. 154 A.D.2d 337, (2nd 545 N.Y.S.814 Dept. 1989). 13. It is respectfully submitted that a reasonable explanation for untime!!ness must be considered, together with allof the relevant factors in deciding whether to grant the extension. In Buono v. City of New York. 240 (2nd A.D.2d 689 Dept. 1997), the Court stated: "although the excuse tendered by Mr. Buono for a failure to serve a Notice of Claim within the prescribed time is tenuous, this factor alone does not warrant denial of the instant application." 14. Similarly, in Reisse v. County of Nassau. 141 A.D.2d 649, 529 (2nd relevant facts must be N.Y.S.2d 371 Dept. 1988), the Court stated that all considered despite the fact that "the reasonableness of the Petitioner's debatable." excuse of the delay is 15. The Court of Ap peals held in Bearv v. City of Rye. 44 N.Y.2d 398, 408 N.Y.2d 9, 377 N.E.2d 435 (1978), that the standards of Sec. 50(e)(a) of 5 of 7 5 of 7 FILED: NEW YORK COUNTY CLERK 06/18/2020 10:53 AM INDEX NO. 154065/2020 NYSCEF DOC. NEW NO. 3YORK INDEX NYSCEF: RECEIVED NO. 154065/2020 07/23/2020 IFILED: COUNTY CLERK 0 6/_18]2020 10 : 53 AÑj NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2020 the General Municipal Law were modified by the Legislature so that the grounds upon which a court may allow late filing were expanded and the time within which an application for such relief can be made was lengthened. 16. The Court went on to say that the standards of Sec. 50(e) are far more classic. in substance, they require a court to consider not only the factors to which itwas formerly limited, but other newly specified ones, along circumstances." with "all other relevant facts and Moreover, in deciding whether to exercise Itsdiscretion, the Court's attention is also focused upon whether the public corporation or those acting for it, acquired actual knowledge of the essential facts of the claim within the ninety-day period or a reasonable Sme thereafter. See Winzel v. County of Suffolk, 92 A.D.2d 545, (2nd Citvof York,92 .D.2d 459 N.Y.2d 112 Dept 1983); Ansaldo v. New 557, (2nd 459 N.Y.S.2d 302 Dept. 1983). 17. The delay in filing the Notice of Claim, in this case did not substantially prejudice Respondent's ability to defend on the merits. 18. Hence, since there is no prejudice to the respondent, and claimant brought this application expeditiously, this Honorable Court should grant the relief sought herein. 19. Claimant would be extremely prejudiced were this application denied, in that itwould prevent her from bringing a meritorious action as a result of the negligence of the respondent "D" 21. Annexed hereto as Exhibit is an Affidavit of the Petitioner In further support of this application. 6 of 7 6 of 7 FILED: NEW YORK COUNTY CLERK 06/18/2020 10:53 AM INDEX NO. 154065/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/23/2020 22. No prior application for the relief sought herein has been made. 23. It is respectfully requested that an Order be granted herein per!"!rg the Notice of Claim served upon the respondent be deemed timely served nunc pro tunc. WHEREFORE, itis requested that the instant Order to respectfu||y Show Cause be in all respects granted, and for other and further relief as to this court may seem just and proper. Dated: New York, NY June 5, 2020 ALISON R. KEENAN . 7 of 7