| Palmer v Society for Seamen's Children |
| 2011 NY Slip Op 07615 [88 AD3d 970] |
| October 25, 2011 |
| Appellate Division, Second Department |
| Jermel Palmer, an Infant, by His Mother and Natural Guardian,Frances Palmer, et al., Plaintiffs, v Society for Seamen's Children et al., Defendants. (Action No.1.) Jermel Palmer, an Infant, by His Mother and Natural Guardian, Frances Palmer, et al.,Respondents, v City of New York, Appellant. (Action No. 2.) |
—[*1] Asher & Associates, P.C., New York, N.Y. (Robert J. Poblete of counsel), for respondents. Edward Garfinkel, Brooklyn, N.Y. (Fiedelman & McGaw [Ross P. Masler], of counsel), fordefendant Society for Seamen's Children in action No. 1.
In two related actions to recover damages for personal injuries, etc., which were joined fortrial, the defendant in action No. 2 appeals from an order of the Supreme Court, RichmondCounty (Aliotta, J.), dated March 22, 2010, which denied its motion for summary judgmentdismissing the complaint in action No. 2.
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the motion of the defendant in action No. 2 which were for summary judgmentdismissing so much of the complaint in action No. 2 as alleged negligent placement, supervision,and removal of the infant plaintiff while he was in foster care, and substituting therefor aprovision granting those branches of the motion; as so modified, the order is affirmed, with coststo the appellant, payable by the respondents.
The infant plaintiff allegedly sustained lead poisoning while residing in a foster home inStaten Island from March 1992 through May 1994. The infant plaintiff's biological mother, onhis behalf and individually, commenced action No. 2 against the City of New York (hereinafterthe appellant) seeking to recover damages on the theories, inter alia, that it was negligent in theplacement of the infant plaintiff in a foster home containing lead-based paint, negligent in thesupervision of the infant plaintiff while residing in the foster home, and negligent in failing toremove the infant plaintiff from the foster home immediately after the New York CityDepartment [*2]of Health confirmed the presence of lead-basedpaint in the home. The appellant moved for summary judgment dismissing the complaint inaction No. 2, arguing, inter alia, that the notice of claim was inadequate. The Supreme Courtdenied the motion.
The purpose of the statutory notice of claim requirement (General Municipal Law §50-e) is to afford the public corporation "an adequate opportunity to investigate thecircumstances surrounding the accident and to explore the merits of the claim while informationis still readily available" (Teresta v City of New York, 304 NY 440, 443 [1952]; seeO'Brien v City of Syracuse, 54 NY2d 353, 358 [1981]; Salesian Socy. v Village ofEllenville, 41 NY2d 521, 524 [1977]). To that end, the statute requires that the notice setforth "the time when, the place where and the manner in which the claim arose" (GeneralMunicipal Law § 50-e [2]; see Brown v City of New York, 95 NY2d 389, 393[2000]). The requirements of the statute are met when the notice describes the accident withsufficient particularity so as to enable the defendant to conduct a proper investigation thereof andto assess the merits of the claim (see O'Brien v City of Syracuse, 54 NY2d at 358; Ingle v New York City Tr. Auth., 7AD3d 574 [2004]; Cyprien v New York City Tr. Auth., 243 AD2d 673, 674 [1997];Levine v City of New York, 111 AD2d 785, 786 [1985]). Whether the notice of claimsubstantially complies with the requirements of the statute depends on the circumstances of eachcase (see Schwartz v City of New York, 250 NY 332, 335 [1929]; Ingle v New York City Tr. Auth., 7AD3d 574 [2004]; Cyprien v New York City Tr. Auth., 243 AD2d 673 [1997];Levine v City of New York, 111 AD2d at 786).
Here, the appellant satisfied its prima facie burden of establishing that the notice of claimwas plainly inadequate. The notice of claim failed to allege that the infant plaintiff was in fostercare at the time of his alleged injuries, or that the appellant was negligent in its placement,supervision, or removal of the infant plaintiff while in foster care (see Hudson Val. Mar., Inc. v Town ofCortlandt, 79 AD3d 700, 704-705 [2010]; Santoro v Town of Smithtown, 40 AD3d 736, 737 [2007];Urena v City of New York, 221 AD2d 429 [1995]; DiMenna v Long Is. Light.Co., 209 AD2d 373, 374-375 [1994]; Caselli v City of New York, 105 AD2d 251,253 [1984]). In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49NY2d 557, 562 [1980]).
Moreover, the new theories of liability raised in the complaint in action No. 2 were notcorrections to the notice of claim that may occur under General Municipal Law § 50-e (6),as "amendments of a substantive nature are not within the purview of General Municipal Law§ 50-e (6)" (Demorcy v City of New York, 137 AD2d 650, 651 [1988]; see Harrington v City of New York, 6AD3d 662 [2004]; Johnson v County of Suffolk, 238 AD2d 480 [1997]).
Since the notice of claim failed to adequately apprise the appellant of the infant plaintiff'sclaims relating to his placement, supervision, and removal while in foster care, the SupremeCourt should have granted those branches of the appellant's motion which were for summaryjudgment dismissing so much of the complaint in action No. 2 as alleged negligent placement,supervision, and removal of the infant plaintiff while he was in foster care (see Ellison v City of New Rochelle, 62AD3d 830, 832 [2009]; Finke vCity of Glen Cove, 55 AD3d 785, 786 [2008]; Rosen & Bardunias v County ofWestchester, 158 AD2d 679, 680-681 [1990], cert denied sub nom. Bardunias v Countyof Westchester, 498 US 1086 [1991]).
The appellant's remaining contentions are without merit. Florio, J.P., Dickerson, Leventhaland Belen, JJ., concur. [Prior Case History: 27 Misc 3d 1227(A), 2010 NY Slip Op50923(U).]