| Padilla v Department of Educ. of the City of N.Y. |
| 2011 NY Slip Op 08824 [90 AD3d 458] |
| Dcmbr 8, 2011 |
| Appellate Division, First Department |
| Maria Padilla, Appellant, v Department of Education of the City ofNew York et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), forrespondents.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered March 18, 2010,which granted defendants' motion to dismiss the complaint for failure to comply with GeneralMunicipal Law §§ 50-e and 50-i, unanimously reversed, on the law, without costs,and the motion denied.
Plaintiff, a teacher at defendant M.S. 201 Star Academy, seeks damages for injuries sheallegedly suffered as a result of an assault by a student at the Academy in January 2006. Herinitial notice of claim named only the City of New York as a defendant; her amended notice ofclaim adding the Department of Education as a defendant was untimely served (seeGeneral Municipal Law § 50-e [1] [a]). In their answer to the complaint, defendants deniedthe allegations of proper service of a notice of claim "except that a notice of claim was presented[and] that more than thirty days have elapsed without adjustment thereof." For the followingreasons, defendants are equitably estopped to argue that plaintiff's initial notice of claim isdefective (see Bender v New York City Health & Hosps. Corp., 38 NY2d 662 [1976]).
In November 2002, after the Education Law had been amended to increase mayoral controlover education and decrease the Board of Education's power, the Office of the CorporationCounsel posted a notice in the New York Law Journal indicating that it was the "solerepresentative for the New York City Department or Board of Education" for service of noticesof claim and process (see Nacipucha vCity of New York, 18 Misc 3d 846, 851 [Sup Ct, Bronx County 2008]). There followeda "period of particular confusion" about notice of claim procedure (see Matter of HamptonsHosp. & Med. Ctr. v Moore, 52 NY2d 88, 94 n 1 [1981] [referring to confusion "incident tothe transfer of operational control of municipal hospitals from the city to the Health andHospitals Corporation"]). Understandably, a number of trial courts held that tort claims againstthe newly reorganized Board of Education and the newly designated Department of Education ofthe City of New York should be brought against the City (see Nacipucha, 18 Misc 3d at852 [collecting cases]). The situation was clarified in 2007, when this Court held that the Citywas not a proper party to actions arising out of torts allegedly committed by the Board and itsemployees (see Perez v City of NewYork, 41 AD3d 378 [2007], lv denied 10 NY3d 708 [2008]).[*2]
In 2006, it was reasonable for plaintiff to name the Cityas the only defendant in her initial notice of claim timely filed with Corporation Counsel. It wasalso reasonable for her to rely on defendants' answer to the complaint for the belief that she hadserved the proper party. While their conduct may not have risen to the level of fraud, defendants"comport[ed] [themselves] wrongfully or negligently, inducing reliance by [plaintiff]" anddiscouraging her from serving a timely amended notice of claim; they are therefore estoppedfrom challenging her initial notice of claim (see Bender, 38 NY2d at 668).
By the time Perez was decided, it was too late for plaintiff to move for leave to servea late notice of claim under General Municipal Law § 50-e (5). The most important factorthat a court must consider in deciding such a motion is whether corporation counsel, which hasas the "attorney" for both the City and defendants, "acquired actual knowledge of the essentialfacts constituting the claim within the time specified" (General Municipal Law § 50-e [5];Matter of Allende v City of NewYork, 69 AD3d 931, 932 [2010]). Concur—Tom, J.P., Moskowitz, Richter andAbdus-Salaam, JJ.