| Catterson v Suffolk County Dept. of Health Servs. |
| 2008 NY Slip Op 02779 [49 AD3d 792] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Marie Catterson, Respondent, v Suffolk CountyDepartment of Health Services et al., Appellants, et al., Defendant. |
—[*1] Castro & Trodden, LLC, Commack, N.Y. (Brian A. Trodden of counsel), forrespondent.
In an action, inter alia, to recover damages for personal injuries, the defendants SuffolkCounty Department of Health Services, Suffolk County Correctional Facility, and SuffolkCounty Sheriff's Department appeal from an order of the Supreme Court, Suffolk County(Baisley, J.), dated April 13, 2007, which granted the plaintiff's motion for leave to serve a latenotice of claim upon the County of Suffolk and denied their cross motion to dismiss, astime-barred, the fourth, fifth, sixth, seventh, and tenth causes of action and so much of the first,second, third, and ninth causes of action as asserted claims under state law.
Ordered that the order is modified, on the law, (1) by adding thereto a provision limiting thelate notice of claim to claims accruing on or after November 30, 2005, insofar as premised uponconduct by the defendant Suffolk County Sheriff's Department and to claims accruing on or afterAugust 30, 2005, insofar as premised upon conduct by the defendants Suffolk CountyDepartment of Health Services and Suffolk County Correctional Facility, and (2) by deleting theprovision thereof denying those branches of the cross motion of the defendants Suffolk CountyDepartment of Health Services, Suffolk County Correctional Facility, and Suffolk CountySheriff's Department which were to dismiss, as time-barred, the fourth, fifth, sixth, seventh, andtenth causes of action and so much of the first, second, third, and ninth causes of action asasserted claims under state law premised upon acts committed by the defendant Suffolk CountySheriff's Department prior to November 30, 2005, and premised upon acts committed by thedefendants Suffolk County Department of Health Services and Suffolk County CorrectionalFacility prior to August 30, 2005, and substituting therefor a provision granting those branches ofthe cross motion; as so modified, the [*2]order is affirmed,without costs or disbursements.
On February 9, 2006 Gary Feinberg, a physician's assistant employed by the defendantSuffolk County Department of Health Services, was arrested for fondling female prisoners underhis care at the defendant Suffolk County Correctional Facility during a seven-month period in2005. On November 30, 2006 one of those inmates, the plaintiff Marie Catterson, commencedthe instant action against the defendants Suffolk County Department of Health Services, SuffolkCounty Correctional Facility, and Suffolk County Sheriff's Department (hereinafter the Countydefendants), to recover damages for personal injuries arising from, inter alia, negligent hiring andnegligent supervision and against the defendant estate of Gary Feinberg, based on sexual abuseincidents committed against her between January 2005 and December 2005. In March 2006Feinberg apparently had committed suicide.
Simultaneously with the filing of the summons and complaint on November 30, 2006 theplaintiff moved for leave to serve a late notice of claim upon the County of Suffolk. In oppositionto the motion, the County defendants cross-moved to dismiss, as time-barred, the statecommon-law tort causes of action insofar as asserted against them. The Supreme Court grantedthe plaintiff leave to serve the notice of claim unconditionally, and denied the County defendants'cross motion. We modify.
In order to commence a tort action against a municipality, a claimant must serve a notice ofclaim within 90 days of the alleged injury (see General Municipal Law § 50-e [1][a]; Williams v Nassau County Med.Ctr., 6 NY3d 531, 535 [2006]; Forrest v Berlin Cent. School Dist., 29 AD3d 1230 [2006]).Pursuant to General Municipal Law § 50-e (5), the court may, in its discretion, extend thetime to serve a notice of claim (see Matter of Felice v Eastport/South Manor Cent. SchoolDist., 50 AD3d 138 [2d Dept 2008]; Matter of Lodati v City of New York, 303AD2d 406 [2003]), after considering " 'whether the movant demonstrated a reasonable excuse forthe failure to serve a timely notice of claim, whether the municipality acquired actual notice ofthe essential facts of the claim within 90 days after the claim arose or a reasonable timethereafter, and whether the delay would substantially prejudice the municipality in its defense' "(Jordan v City of New York, 41AD3d 658, 659 [2007], quoting Matter of Hicks v City of New York, 8 AD3d 566 [2004]; seeMatter of Valestil v City of New York, 295 AD2d 619 [2002]; see also GeneralMunicipal Law § 50-e [5]).
Neither the presence nor the absence of any one factor is determinative (see Matter ofDell'Italia v Long Is. R.R. Corp., 31 AD3d 758, 759 [2006]; Gibbs v City of New York, 22 AD3d717, 719 [2005]), and even the absence of a reasonable excuse is not necessarily fatal (see Matter of March v Town ofWappinger, 29 AD3d 998 [2006]; Matter of Alvarenga v Finlay, 225 AD2d 617[1996]). However, courts have no power to authorize a late notice of claim for claims accruingprior to the one-year and 90-day statutory period for an individual incident (see GeneralMunicipal Law § 50-i [1] [c]; Pierson v City of New York, 56 NY2d 950, 954-956[1982]; Maxwell v City of NewYork, 29 AD3d 540, 541 [2006]; Small v New York City Tr. Auth., 14 AD3d 690, 691 [2005]).
Under the circumstances of this case, the Supreme Court providently exercised its discretionin concluding that the County defendants timely acquired actual knowledge of the essential factsunderlying the plaintiff's claim and would not be prejudiced by late service (see Jordan v Cityof New York, 41 AD3d at 659; Matter of Andrew T.B. v Brewster Cent. School Dist., 18 AD3d745, 748 [2005]; Cruz v City of Yonkers, 268 AD2d 501 [2000]; Matter of Huntv County of Madison, 261 AD2d 695, 696 [1999]). Within two months of the last incident ofsexual abuse, several inmates, [*3]including the plaintiff, reportedthe alleged sexual abuse to the County defendants, who immediately conducted an investigationculminating in the filing of criminal charges against Feinberg (see Matter of Besedina v New York CityTr. Auth., 47 AD3d 924 [2008]; Matter of Hunt v County of Madison, 261AD2d at 696). In light of their investigation, the County defendants' conclusory assertions ofprejudice, based solely on the plaintiff's delay in serving the notice of claim, are insufficient towarrant the denial of her motion for leave to serve a late notice of claim (see Williams vNassau County Med. Ctr., 6 NY3d at 539; Gibbs v City of New York, 22 AD3d at720; Matter of Andrew T.B. v Brewster Cent. School Dist., 18 AD3d at 748).
While the plaintiff failed to support her motion with a statement from either her treatingpsychiatrist or psychologist or other documentary evidence, she did provide some explanation forthe delay, citing her homelessness, incarceration, and resultant depression. In any event, theabsence of a reasonable excuse for the delay does not bar the court from granting leave to serve alate notice of claim under the extant circumstances (see Matter of Rivera-Guallpa v County of Nassau, 40 AD3d 1001,1002 [2007], lv denied 9 NY3d 816 [2007]; Matter of Vasquez v City of Newburgh, 35 AD3d 621, 623-624[2006]; Gibbs v City of New York, 22 AD3d at 720).
Although the Supreme Court providently granted the plaintiff's motion for leave to serve alate notice of claim, it should have limited the late notice of claim only to those claims not barredby the applicable statute of limitations (see CPLR 215 [1]; General Municipal Law§ 50-i).
The Supreme Court erred in denying the County defendants' cross motion to the extent itsought to dismiss the state law causes of action insofar as premised upon acts committed by thedefendants Suffolk County Department of Health Services and Suffolk County CorrectionalFacility prior to August 30, 2005, and state law causes of action premised upon acts committedby the defendant Suffolk County Sheriff's Department prior to November 30, 2005, since any ofthe plaintiff's claims arising from acts constituting state common-law torts that occurred priorthereto are time-barred (see CPLR 215 [1]; General Municipal Law § 50-i [1] [c];Grey v New York City Health & Hosps. Corp., 305 AD2d 458 [2003]; Williams vHowe, 297 AD2d 671 [2002]; Pinna v Larys, 284 AD2d 315, 316 [2001]). Skelos,J.P., Lifson, Santucci and Balkin, JJ., concur.