K.G. v. City of N.Y.

186 A.D.3d 1366

128 N.Y.S.3d 900 (Mem)

In the Matter of K.G. (Anonymous), etc., petitioner-respondent,

v.CITY OF NEW YORK, appellant, et al., respondent.

2019–00104

Index No. 516260/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 3, 2020

September 16, 2020

James E. Johnson, Corporation Counsel, New York, N.Y. (Fay S. Ng and Janet L. Zaleon of counsel), for appellant.

Levy Konigsberg LLP, New York, N.Y. (Corey M. Stern and Renner K. Walker of counsel), for petitioner-respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the City of New York appeals from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated October 23, 2018. The order granted the petition.

ORDERED that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.

In July 2012, K.G. (hereinafter the infant petitioner), at a time while he was residing with his mother in an apartment building owned and operated by the New York City Housing Authority (hereinafter NYCHA), was found to have elevated blood lead levels. In August 2018, the infant petitioner's mother commenced this proceeding on his behalf for leave to serve a late notice of claim on the City of New York. The Supreme Court granted the petition. The City appeals.

"Pursuant to General Municipal Law § 50–e(5), a court may, in its discretion, extend the time to serve a notice of claim (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 535, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ; Matter of Ramirez v. City of New York, 148 A.D.3d 908, 908, 50 N.Y.S.3d 103 ). The purpose of the notice of claim is to provide municipalities timely notice so that they can investigate, collect evidence, and evaluate the merits of the claim while the facts are still fresh (see Rosenbaum v. City of New York, 8 N.Y.3d 1, 828 N.Y.S.2d 228, 861 N.E.2d 43 ; Brown v. City of New York, 95 N.Y.2d 389, 718 N.Y.S.2d 4, 740 N.E.2d 1078 )" ( Matter of O'Dowd v. Jericho Fire Dept., 161 A.D.3d 981, 982, 78 N.Y.S.3d 155 ). " ‘Ordinarily, the courts will not delve into the merits of an action on an application for leave to serve and file a late notice of claim’ ( Matter of Brown v. New York City Hous. Auth., 39 A.D.3d 744, 745, 834 N.Y.S.2d 279 ; see Matter of Channel Mar. Sales, Inc. v City of New York, 75 A.D.3d 600, 601, 903 N.Y.S.2d 922 ). ‘However, permission to file a late notice of claim is properly denied where the underlying claim is patently meritless’ ( Matter of Ramirez v. City of New York, 148 A.D.3d at 909, 50 N.Y.S.3d 103, quoting Matter of Catherine G. v. County of Essex, 3 N.Y.3d 175, 179, 785 N.Y.S.2d 369, 818 N.E.2d 1110 )" ( Matter of Kmiotek v. Sachem Cent. Sch. Dist., 176 A.D.3d 1063, 1064–1065, 111 N.Y.S.3d 322 ).

Here, the Supreme Court should have denied the petition on the ground that the claim, insofar as asserted against the City, is patently meritless. "Liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property" ( Delgardio v. Davis, 86 A.D.3d 589, 590, 926 N.Y.S.2d 919 ; see Wali v. City of New York, 71 A.D.3d 1134, 898 N.Y.S.2d 202 ). It is undisputed that the apartment building in which the infant petitioner resided...