| Matter of Peterson v New York City Dept. of Envtl.Protection |
| 2009 NY Slip Op 07849 [66 AD3d 1027] |
| October 27, 2009 |
| Appellate Division, Second Department |
| In the Matter of Thomas Peterson, Appellant, v New YorkCity Department of Environmental Protection et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow andSuzanne K. Colt of counsel), for respondent New York City Department of EnvironmentalProtection. Joseph A. Maria, P.C., White Plains, N.Y., for respondent City of White Plains. Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz andJustin R. Adin of counsel), for respondent County of Westchester. Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael S. Belohlavek and DavidLawrence III of counsel), for respondents New York State Office of Parks, Recreation andHistoric Preservation and New York State Department of Environmental Conservation.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the appeal is from an order and judgment (one paper) of the Supreme Court,Westchester County (Donovan, J.), entered June 18, 2008, which granted the motion of the NewYork State Office of Parks, Recreation and Historic Preservation and the New York StateDepartment of Environmental Conservation to dismiss the petition insofar as asserted againstthem pursuant to CPLR 3211 (a), in effect, denied the petition insofar as asserted against theremaining respondents, and is in favor of all of the respondents and against the petitionerdismissing the proceeding. The appeal brings up for review so much of an order of the samecourt entered September 5, 2008, as, upon renewal and reargument, adhered to the originaldetermination in the order and judgment entered June 18, 2008 (see CPLR 5517 [b]).
Ordered that the appeal from the order and judgment entered June 18, 2008, is affirmed; andit is further,
Ordered that the order entered September 5, 2008, is affirmed insofar as reviewed; and [*2]it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
We affirm so much of the Supreme Court's order and judgment as granted that branch of themotion of the New York State Office of Parks, Recreation and Historic Preservation and theNew York State Department of Environmental Conservation (hereinafter together the Staterespondents) which was to dismiss the petition insofar as asserted against them, and dismissedthe proceeding insofar as asserted against them, albeit upon a ground different from that reliedupon by the Supreme Court. The Court of Claims has exclusive jurisdiction over claims formoney damages against the State and its agencies, departments, and employees acting in theirofficial capacity in the exercise of governmental functions (see NY Const, art VI,§ 9; Court of Claims Act §§ 8, 9 [2]; Morell v Balasubramanian, 70NY2d 297, 300 [1987]; Schaffer v Evans, 57 NY2d 992, 994 [1982]; Sinhogar vParry, 53 NY2d 424, 431 [1981]; Dinerman v NYS Lottery, 58 AD3d 669 [2009]).Consequently, the State respondents were entitled to dismissal of so much of the petition assought leave to serve a late notice of claim upon them for lack of subject matter jurisdiction, asthe claim seeks money damages against the State respondents for personal injuries that thepetitioner allegedly sustained as a result of their alleged negligence in the ownership and/ormaintenance of the roadway where he fell.
The Supreme Court providently exercised its discretion in denying the petition for leave toserve a late notice of claim upon the remaining respondents. General Municipal Law §50-e requires that a notice of claim be served within 90 days after a tort claim arises against apublic corporation. This requirement is intended to protect public corporations against staleclaims and to give them an opportunity to timely and efficiently investigate tort claims (seeMatter of Narcisse v Incorporated Vil. of Cent. Islip, 36 AD3d 920 [2007]; Matter ofTumm v Town of Eastchester, 8 AD3d 581, 582 [2004]). The statute, however, provides fora discretionary extension of the 90-day time limit (see General Municipal Law §50-e [1] [a]; [5]; Lucero v New York City Health & Hosps. Corp. [Elmhurst Hosp. Ctr.],33 AD3d 977, 978 [2006]; Matter of Kressner v Town of Malta, 169 AD2d 927, 927-928[1991]). The statute enumerates various factors relevant to an application for an extension, but itsets one apart from all the others: "the court shall consider, in particular, whether the publiccorporation . . . acquired actual knowledge of the essential facts constituting theclaim within the [90-day period] or within a reasonable time thereafter" (General Municipal Law§ 50-e [5]). Other factors, listed under the category "all other relevant facts andcircumstances" (id.), essentially require a reasonable excuse for the delay and a showingof lack of prejudice to the public corporation in its defense on the merits (see Matter ofDell'Italia v Long Is. R.R. Corp., 31 AD3d 758, 759 [2006]; Matter of Sica v Board ofEduc. of City of N.Y., 226 AD2d 542 [1996]; Matter of Shapiro v County of Nassau,208 AD2d 545 [1994]). None of these factors is "necessarily determinative" (Matter ofDell'Italia v Long Is. R.R. Corp., 31 AD3d at 759).
The petitioner did not establish that the remaining respondents had "actual knowledge of theessential facts constituting the claim," within 90 days after his accident or within a reasonabletime thereafter (General Municipal Law § 50-e [5]; see Matter of Carpenter v City ofNew York, 30 AD3d 594, 595 [2006]). Although the remaining respondents were servedwith a petition for leave to serve a late notice of claim within three weeks after the expiration ofthe 90-day period for the service of a notice of claim upon them, neither the petition nor theproposed notice of claim specified the precise location of the accident (see GeneralMunicipal Law § 50-e [2]; Perre v Town of Poughkeepsie, 300 AD2d 379, 380[2002]). In describing how the accident occurred, the proposed notice of claim andaccompanying affidavits only stated that the petitioner tripped and fell in a "sink hole" on a"roadway" while inline skating at Kensico Dam Park, allegedly sustaining injuries to hisshoulder. This proposed notice did not describe how the remaining respondents acquired actualnotice of the essential facts constituting the claim within 90 days of the accident or a reasonabletime thereafter (see Perre v Town of Poughkeepsie, 300 AD2d 379 [2002]). Moreover,the petitioner's contention that the remaining respondents had actual or constructive notice of theroadway defect and/or affirmatively created it does not establish that the respondents had actualknowledge of the accident itself (see Washington v City of New York, 72 NY2d 881[1988]). "What satisfies the statute is not knowledge of the wrong, but notice of the claim. Themunicipality must have notice or knowledge of the specific claim and not general knowledgethat a wrong has been committed" (Matter of [*3]Sica vBoard of Educ. of City of N.Y., 226 AD2d at 543; see Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138, 148 [2008]; Matter of Shapiro v County ofNassau, 208 AD2d 545 [1994]).
Additionally, as the Supreme Court found, the petitioner did not demonstrate a reasonableexcuse for his delay (see Matter of Narcisse v Incorporated Vil. of Cent. Islip, 36 AD3d920 [2007]; Matter of Welch v New York City Hous. Auth., 7 AD3d 805 [2004];Matter of Jensen v City of Saratoga Springs, 203 AD2d 863, 864 [1994]). While theremaining respondents failed to demonstrate how the passage of time hampered their ability toinvestigate the alleged roadway defect, or interview witnesses or employees, and did not showsubstantial prejudice in their ability to defend this proceeding, the Supreme Court nonethelessproperly, in effect, denied the petition insofar as asserted against them due to the lack of timelyactual knowledge of the facts constituting the claim and the petitioner's lack of a reasonableexcuse for the delay in bringing the proceeding (see Matter of Dell'Italia v Long Is. R.R.Corp., 31 AD3d at 759-760).
Upon renewal and reargument, the Supreme Court providently adhered to its originaldetermination (see CPLR 2221 [d], [e], [f]).
The petitioner's remaining contentions either are without merit, have been renderedacademic, or need not be reached in light of the foregoing. Dillon, J.P., Florio, Belen andRoman, JJ., concur.