Civil Rights Round Up
Monday's NY Blawg Round Up

1st Department Considers 9/11 Notice of Claim Issue

I always find cases involving late Notice of Claim issues to be of particular interest given the serious ramifications presented by an untimely Notice of Claim.  And, the First Department case, Matter of Goffredo v City of New York, 2006 NY Slip Op 07196, is all the more interesting since it involves allegations of injuries sustained by the petitioner as a result of exposure to toxins while working at the World Trade Center site between September 11, 2001 and June of 2002. 

And, it's jam-packed full of interesting holdings regarding a multitude of procedural issues, not all of which will be included in this post.  So, you may very well wish to read this opinion in its entirety.

In this case, the petitioner's symptoms first appeared in December 2001 and he was eventually diagnosed with Chronic Obstructive Pulmonary Disease on February 27, 2003.  He sought to serve a late Notice of Claim on December 23, 2003 via an un-notarized affidavit, although no objection was raised at the time regarding the fact that the affidavit was not notarized.  Nevertheless, the trial court denied (without prejudice to renew) the motion for leave to serve a late Notice of Claim on the grounds that the affidavit was not notarized. 

The petitioner then made a motion to renew on or about June 15, 2003 and correctly filed the motion papers that time around.  The trial court again denied the motion, this time on the grounds that relief was being sought after the one year and ninety day statute of limitations had expired.

The First Department stated that the trial correct had improperly denied the first application, since an objection to the un-notarized affidavit had not been made, but concluded that the trial court was correct in denying the motion for leave to serve a late Notice of Claim since the applicable statute of limitations had expired:

General Municipal Law ยง 50-e(5) provides, in relevant part, that: "Upon application, the court, in its discretion, may extend the time to serve a notice of claim . . . . The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation [i.e., one year and ninety days]." Thus, once the statute of limitations has expired, the court is without discretion to entertain an application for leave to file a late notice of claim...

Where, as here, the claimed injury results from exposure to a harmful substance, the action accrues upon discovery of the manifestations or symptoms of the latent disease that the harmful substance produced... The diagnosis of petitioner's illness occurred on February 27, 2003. However, petitioner's medical records demonstrate that the symptoms manifested themselves on or about December 19, 2001. Since petitioner commenced the initial proceeding on or about December 23, 2003, approximately two years after his claim accrued, his initial petition was untimely and subject to dismissal.  (Internal citations and quotations omitted.)

The Court then went on to consider another interesting procedural question:  whether a motion to renew relates back to the date when the original motion was filed.  The dissent contended that the petitioner's original application was timely and thus, the renewed application was timely as well.  The majority dismissed that argument, refusing to adopt the contrary holding a Second Department case directly on point (Matter of Mazzilli v City of New York (115 AD2d 604 [2d Dept 1985])), and stated that:

Even assuming that petitioner's initial application to file a late notice of claim was timely, the renewed application was not. Once Supreme Court denied the initial application, petitioner's remedy was to appeal from that order. That course of action would have preserved the timely application... Petitioner's decision to renew the application rather than appeal cannot easily be criticized in light of Supreme Court's denial without prejudice to renew. The more prudent course, however, would have been both to appeal and renew the application. In any event, our sympathy for the position petitioner was placed in by Supreme Court does not provide a basis for concluding that the renewed application should have been granted.

An untimely renewal motion does not relate back to the date when the originally timely motion was made... As we have noted, acceptance of the "relation-back" doctrine in this regard is inappropriate because the statute of limitations would have no practical effect for it would impose no time constraint on seeking renewal.  (Internal citations and quotations omitted.)

A number of other interesting procedural arguments were raised in this decision and I highly recommend that you read it in its entirety.  I find the dissent's argument to be quite compelling in many respects.  Anyone care to convince me that the majority got it right?


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