| Platt v New York City Health & Hosps. Corp. |
| 2013 NY Slip Op 02733 [105 AD3d 1026] |
| April 24, 2013 |
| Appellate Division, Second Department |
| Lorraine Platt, Respondent, v New York CityHealth and Hospitals Corporation et al., Appellants. |
—[*1] Lozner & Mastropietro, Brooklyn, N.Y. (Elizabeth Mark Meyerson of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County(Velasquez, J.), dated March 23, 2012, as granted the plaintiff's motion pursuant toGeneral Municipal Law § 50-e (5) to deem the late notice of claim served upon thedefendant, New York City Health and Hospitals Corporation, timely served nunc protunc.
Ordered that the appeal by the City of New York is dismissed as abandoned; and it isfurther,
Ordered that the order is reversed insofar as appealed from by the defendant NewYork City Health and Hospitals Corporation, on the law and in the exercise of discretion,with costs, and the plaintiff's motion to deem the late notice of claim served upon thedefendant, New York City Health and Hospitals Corporation, timely served nunc protunc is denied.
The appeal by the City of New York must be dismissed as abandoned, as theappellant's brief has been submitted only on behalf of the defendant New York CityHealth and Hospitals Corporation (hereinafter the HHC).
On November 12, 2010, the plaintiff allegedly was injured in a collision between herautomobile and an automobile owned by the HHC. On February 11, 2011, the plaintiffserved a notice of claim upon the Comptroller of the City of New York (hereinafter theComptroller). The plaintiff did not serve a notice of claim on the HHC until October 20,2011. The plaintiff later moved to have the notice of claim deemed timely served. TheSupreme Court granted the motion, and the HHC appeals.
Service of a notice of claim upon the HHC within 90 days after accrual of a claim isa condition precedent to commencing an action against HHC (see McKinney'sUncons Laws of NY § 7401 [2] [New York City Health and Hospitals CorporationAct § 20 (2), as added by L 1969, ch 1016, § 1, as amended by L 1990, ch804, § 122]; General Municipal Law § 50-e [1] [a]; Scantlebury v New York CityHealth & Hosps. Corp., 4 NY3d 606, 609 [2005]; Barnaman v New York City Health& Hosps. Corp., 90 AD3d 588, 588 [2011]; Argudo v New York City Health & Hosps. Corp., 81 AD3d575, 576 [2011]). As the Court of Appeals has "long recognized," the City of NewYork and the HHC are separate entities for purposes of a notice of claim (Scantleburyv New York City Health & Hosps. Corp., 4 NY3d at 611; Bender v New YorkCity Health & Hosps. Corp., 38 NY2d 662, 665-666 [1976]; Barnaman v NewYork City Health & Hosps. Corp., 90 AD3d at 588-589). Accordingly, the plaintiff'sservice of a notice of claim upon the Comptroller was insufficient to constitute serviceupon the HHC (see Scantlebury v New York City Health & Hosps. Corp., 4NY3d at 613; Barnaman v New York City Health & Hosps. Corp., 90 AD3d at589).
In determining whether to grant an application for leave to serve a late notice ofclaim or to deem a late notice of claim timely served nunc pro tunc, the court mustconsider whether (1) the public corporation or its attorney or insurance carrier acquiredactual knowledge of the essential facts constituting the claim within 90 days after theclaim arose or a reasonable time thereafter, (2) the claimant made an excusable errorconcerning the identity of the public corporation against which the claim should beasserted, (3) the claimant demonstrated a reasonable excuse for the failure to serve atimely notice of claim (see General Municipal Law § 50-e [5]), and (4) thedelay would substantially prejudice the public corporation in its defense on the merits (see Matter of Mitchell v Town ofGreenburgh, 96 AD3d 852 [2012]; Matter of Gershanow v Town of Clarkstown, 88 AD3d879, 880 [2011]; Matter ofIacone v Town of Hempstead, 82 AD3d 888, 888 [2011]).
The Supreme Court improvidently exercised its discretion in granting the plaintiff'smotion. First, the plaintiff failed to demonstrate that the HHC had actual knowledge ofthe facts constituting the claim within 90 days after it arose or "within a reasonable timethereafter" (General Municipal Law § 50-e [5]). The fact that a police accidentreport was prepared by the New York City Police Department did not constitute notice tothe HHC of the essential facts constituting the claim (see Matter of Klass v City of New York, 103 AD3d 800[2013]; State Farm Mut. Auto.Ins. Co. v New York City Tr. Auth., 35 AD3d 718, 718 [2006]). In any event,the police report merely indicated that the plaintiff's vehicle was struck as it was pullingout of a parking spot, so it would not have put the HHC on notice of the "facts thatunderlie the legal theory or theories on which liability is predicated" (Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138, 148 [2008]).
Moreover, the plaintiff's mistake as to the identity of the public corporation againstwhich her claim should be asserted was not excusable. The plaintiff had information asto the ownership of the HHC's vehicle before her time to serve a timely notice of claimexpired (see Matter of Moore vNew York City Hous. Auth., 89 AD3d 1088, 1088 [2011]), and it has long beenthe rule that the City of New York and the HHC are separate entities for purposes ofnotices of claim (see Scantlebury v New York City Health & Hosps. Corp., 4NY3d at 611; cf. Bender v New York City Health & Hosps. Corp., 38 NY2d at668-669). Indeed, even after learning of the identity of the proper defendant, the plaintiffdelayed for two months in moving to have her late-served notice of claim against theHHC deemed timely served (see Matter of Dell'Italia v Long Is. R.R. Corp., 31AD3d 758, 759 [2006]; Matter of Morris v County of Suffolk, 88 AD2d 956,956-957 [1982], affd 58 NY2d 767 [1982]; cf. Matter of Goldberg v Countyof Suffolk, 227 AD2d 482, 482 [1996]).
Finally, the plaintiff failed to demonstrate that her delay did not prejudice the HHCin its defense on the merits. The plaintiff did not serve a notice of claim upon the HHCuntil eight months after the 90-day period expired and then did not move for two moremonths to have that late notice of claim deemed timely (see Brandi v City of NewYork, 90 AD3d 751, 751 [2011]; Matter of Hill v New York City Tr. Auth., 68 AD3d 866,867 [2009]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50AD3d at 152).
In light of all of these factors, none of which is by itself determinative (see Matterof Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 147), the plaintiff'smotion to deem the late notice of claim served upon the HHC timely served nunc protunc should have been denied. Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur.