| Faulkner v City of New York |
| 2008 NY Slip Op 00649 [47 AD3d 879] |
| January 29, 2008 |
| Appellate Division, Second Department |
| Vincent J. Faulkner, Jr., et al., Respondents, v City of NewYork et al., Appellants. |
—[*1] Michael W. Rosen, New York, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendant City of New Yorkappeals, as limited by its brief, (1) from so much of an order of the Supreme Court, QueensCounty (Elliot, J.), dated April 27, 2006, as granted that branch of the plaintiffs' motion whichwas, in effect, pursuant to CPLR 3211 (b) to dismiss the ninth affirmative defense insofar asasserted against the plaintiff Vincent J. Faulkner, Jr., and (2) from an order of the same courtdated September 26, 2006, which (a) denied that branch of the motion of the City of New Yorkwhich was for leave to renew, and (b) upon reargument, adhered to the original determination.
Ordered that the appeal from the order dated April 27, 2006 is dismissed, as that order wassuperseded by the order dated September 26, 2006, made upon reargument; and it is further,
Ordered that the order dated September 26, 2006 is modified, on the law, by deleting theprovision thereof, upon reargument, adhering to the prior determination granting that branch ofthe plaintiffs' motion which was to dismiss the ninth affirmative defense and substituting therefora provision, upon reargument, vacating so much of the order dated April 27, 2007, as granted thatbranch of the motion, and denying that branch of the plaintiffs' motion which was to dismiss theninth affirmative defense; as so modified, the order is affirmed, without costs and disbursements.
The plaintiff Vincent J. Faulkner, Jr. (hereinafter the plaintiff), allegedly sustained personalinjuries on April 1, 2004 while performing maintenance on an elevator at Shea Stadium. On June[*2]23, 2004 the plaintiff served a notice of claim upon thedefendant City of New York, alleging, inter alia, that he fell down an access shaft to the elevatormotor of "elevator #20" due to a defective ladder. The notice of claim lists the mailing address ofthe plaintiff's counsel as: "One Penn Plaza, 250 W. 34th St., 36th Fl., N.Y., N.Y. 10119." Acover letter accompanying the notice of claim, bearing the same address with floor number,requested all future communications be sent to counsel's office. On or about September 8, 2004the plaintiffs commenced the instant action.
The City answered and asserted a number of affirmative defenses, including a ninthaffirmative defense asserting that the plaintiffs "failed to comply with the requirements ofGeneral Municipal Law § 50, et seq." The defense of failure to comply with theprovisions of the General Municipal Law was premised on assertions that the plaintiff failed toappear at a scheduled hearing pursuant to General Municipal Law § 50-h (hereinafter the50-h hearing), and that the notice of claim was insufficiently specific. The plaintiffs moved, ineffect, pursuant to CPLR 3211 (b), to dismiss the ninth affirmative defense, arguing, in part, thatthe City failed to request a 50-h hearing after the notice of claim was served. The City opposedthe motion with proof that notice that a 50-h hearing on the claim was scheduled for August 26,2004, was mailed to the plaintiffs' counsel on August 5, 2004. The notice was addressed tocounsel at the requested address, but omitted any reference to the 36th floor. In reply, theplaintiffs' counsel affirmed that he never received the notice of the scheduled 50-h hearing, andasserted that his office building had some 360 offices, on 55 floors, and that mail without aspecific floor designation was not delivered.
In response to the plaintiffs' proof that notice was not received, the City's proof was sufficientto raise an issue of fact as to that aspect of its defense (see Rotondi v Drewes, 31 AD3d 734 [2006]). When material issuesof fact are unresolved, a court should not strike a defense (see Lopez v 121 St. Nicholas Ave. H.D.F.C., 28 AD3d 429[2006]). The plaintiffs therefore failed to meet their burden of showing the defense, insofar as itasserted that the plaintiffs failed to appear at the hearing, was without merit as a matter of law(see Vita v New York Waste Servs.,LLC, 34 AD3d 559 [2006]; Town of Hempstead v Lizza Indus., 293 AD2d 739[2002]).
There is no question of fact as to the sufficiency of the notice of claim. The notice of claimfiled by the plaintiff was sufficiently specific. Prudenti, P.J., Fisher, Santucci and Angiolillo, JJ.,concur.