Watt v. Urban Dove Team Charter Sch.

78 Misc.3d 760

185 N.Y.S.3d 606

Carlene WATT, as Administrator of the Estate of D.L., Petitioner,

v.URBAN DOVE TEAM CHARTER SCHOOL a/k/a Team Brooklyn, Urban Dove Charter Schools, the Urban Dove, Inc., the City of New York, and The New York City Department of Education, Respondents.

Index No. 519229/2022

Supreme Court, Kings County, New York.

Decided on February 17, 2023

Attorneys for Petitioner: Michael D. Ricchiuto, Esq., Friedman, Levy, Goldfarb & Green P.C., 250 W 57th St Ste 1619, New York, NY 10107

Attorneys for Respondents: Kenneth E. Pitcoff, Esq., Morris Duffy Alonso & Fahey, 2 Rector Street, 22nd Floor, New York, NY 10006, Gregory Voigt, Assistant Corporation Counsel, New York City Law Department, 350 Jay Street, Brooklyn, NY11201

Consuelo Mallafre Melendez, J.

Petitioner filed an Order to Show Cause requesting leave to file a late notice of claim. The proposed notice of claim asserts claims for conscious pain and suffering and wrongful death against Respondents URBAN DOVE TEAM CHARTER SCHOOL a/k/a TEAM BROOKLYN, URBAN DOVE CHARTER SCHOOLS, THE URBAN DOVE, INC., ("Urban Dove") and RESPONDENTS THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF EDUCATION to recover for the death of infant D.L. resulting from a shooting. Respondents Urban Dove oppose the motion on the grounds that they never acquired actual knowledge of the essential facts giving rise to the claims and would therefore be substantially prejudiced in their defense, and that the claims are without merit. Respondents THE CITY OF NEW YORK ("City") and THE NEW YORK CITY DEPARTMENT OF EDUCATION ("DOE") oppose the motion on the grounds that the City and DOE are an improper party to this action as they did not own, operate, control, or maintain the premises of Respondent Urban Dove or any of the students attending Urban Dove on April 29, 2021. The City and DOE also argue that petitioner does not meet the criteria for a late notice of claim motion to be granted as against them.

On April 29, 2021, D.L., an infant student at Urban Dove, was shot and killed at the time of the school's dismissal at approximately 2:30pm. Carlene Watt, D.L.’s mother, was appointed Administrator of the Estate of D.L. on April 8, 2022. A notice of claim was filed on July 6, 2022. Petitioner argues the notice of claim was timely as to the wrongful death action because it was filed within 90-days of the appointment of the Administrator. Petitioner also argues that there would be no prejudice to Respondents if Petitioner is granted leave to file a late notice of claim as to the conscious pain and suffering claims because Respondent had actual notice of the facts giving rise to the claim at the time of the shooting because Respondents Urban Dove had notice of a potential danger to D.L. prior to the shooting, it happened in such close proximity to school property during dismissal of school, faculty witnessed the shooting, and the school helped the New York City Police Department with their investigation.

When considering a request for leave to file a late notice of claim the court must consider the underlying theory of the claim(s) being brought. Pursuant to General Municipal Law § 50-e, "(a) timely and sufficient notice of claim is a condition precedent to asserting a tort claim against a municipality or public benefit corporation." Se Dae Yang v. New York City Health and Hosps. Corp. , 140 A.D.3d 1051, 1052, 35 N.Y.S.3d 350 [2d Dept. 2016], citing General Municipal Law § 50–e[1][a] ; Brown v. City of New York , 95 N.Y.2d 389, 393, 718 N.Y.S.2d 4, 740 N.E.2d 1078 [2000]. "With respect to most torts, service of the notice of claim must be made within 90 days after the claim arises, but ‘in wrongful death actions, the [90] days shall run from the appointment of a representative of the decedent's estate.’ " Se Dae Yang, 140 A.D.3d at 1052, 35 N.Y.S.3d 350 ; General Municipal Law § 50–e[1][a] ). It is also well established that

"a wrongful death action belongs to the decedent's distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act (see EPTL 5–4.3 ) In comparison, a personal injury action on behalf of the deceased under EPTL 11–3.2(b) seeks recovery for the conscious pain and suffering of the deceased and any damages awarded accrue to the estate (internal citation omitted). Such a claim is personal to the deceased and belongs to the estate, not the distributees In short, the two causes of action are ‘predicated on essentially different theories of loss which accrue to different parties’ " (internal citation omitted). Heslin v. County of Greene , 14 N.Y.3d 67, 76-77, 896 N.Y.S.2d 723, 923 N.E.2d 1111 [2010].

Accordingly, the substance of the claim and the time to file a notice of claim differs as to the two distinct causes of action.

Here, the notice of claim was timely filed as to the wrongful death claim 89 days after Petitioner was appointed Administrator of D.L.’s Estate. Therefore, Petitioner's Order to Show Cause requesting Petitioner leave to file a late Notice of Claim against Urban Dove is GRANTED as to the wrongful death claim.

As described above, the time to file a notice of claim differs between wrongful death claims and conscious pain and suffering claims. Service of a notice of claim regarding conscious pain and suffering, must be made within 90 days after the claim arises. See General Municipal Law § 50–e[1][a]. When determining whether to grant a petition for leave to serve a late notice of claim, the court must consider whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, (2) the petitioner was an infant at the time the claim arose and, if so, whether there was a nexus between the petitioner's infancy and the failure to serve a timely notice of claim, (3) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (4) the public corporation was substantially prejudiced by the delay in its ability to maintain its defense on the merits. Matter of Lamprecht v. Eastport–South Manor Central School District , 129 A.D.3d 1084, 1085, 13 N.Y.S.3d 154 [2d Dept. 2015] ; see Education Law § 3813[2–a] ; General Municipal Law § 50–e[5] ; Williams v. Nassau County Med. Ctr. , 6 N.Y.3d 531, 538, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006] ; Matter of McLeod v. City of New York , 105 A.D.3d 744, 745, 962 N.Y.S.2d 641 [2d Dept. 2013] ; Bazile v. City of New York , 94 A.D.3d 929, 930, 943 N.Y.S.2d 131 [2d Dept. 2012] ; Matter of Felice v. Eastport/South Manor Cent. School Dist. , 50 A.D.3d 138, 147–153, 851 N.Y.S.2d 218 [2d Dept. 2008].

The determination of an application for leave to serve a late notice of claim is left to the sound discretion of the trial court. Matter of Ruiz v. City of New York , 154 A.D.3d 945, 946, 63 N.Y.S.3d 425 [2d Dept. 2017]. "Although the Supreme Court has ‘broad discretion’ to evaluate the factors set forth in General Municipal Law § 50–e(5), its determination must be supported by record evidence." Parker v. City of New York , 206 A.D.3d 936, 937-938, 170 N.Y.S.3d 603 [2d Dept. 2022], citing E.R. v. Windham , 181 A.D.3d 736, 738, 122 N.Y.S.3d 106 [2d Dept. 2020], quoting Matter of Newcomb v. Middle Country Cent. Sch. Dist. , 28 N.Y.3d 455, 465, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016].

It is well established that the Court of Appeals holds that "to enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a notice of claim." Brown , 95 N.Y.2d at 392, 718 N.Y.S.2d 4, 740 N.E.2d 1078. In particular, "(t)he General Municipal Law requires that the notice of claim set forth, among other things, ‘the nature of the claim’ " (internal citations omitted). Conn v. Tutor Perini Corp. , 174 A.D.3d 680, 682, 105 N.Y.S.3d 508 [2d Dept. 2019]. "In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves" (internal citations omitted). Matter of D'Agostino v. City of New York , 146 A.D.3d 880, 880-881, 46 N.Y.S.3d 635 [2d Dept. 2017] ; see General Municipal Law § 50-e (5). The underlying claim in this case is negligence based on a breach of the school's duty to supervise its students.

" ‘The most important factor based on its placement in the statute and its relation to other relevant factors is whether the [municipal] corporation acquired actual notice of the essential facts constituting the claim within 90 days of the accrual of the claim or within a reasonable time thereafter.’ " Joseph v. City of New York , 208 A.D.3d 1324, 1326, 176 N.Y.S.3d 69 [2d Dept. 2022], citing Matter of Lugo v. GNP Brokerage , 185 A.D.3d 824, 825, 127 N.Y.S.3d 527 [2d Dept. 2020], quoting Matter of D'Agostino , 146 A.D.3d at 880, 46 N.Y.S.3d 635. "While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance.’ " Wieman-Gibson v. County of Suffolk , 206 A.D.3d 666, 667, 170 N.Y.S.3d 123 [2d Dept. 2022], citing Matter of Snyder v. County of Suffolk , 116 A.D.3d 1052, 1053, 985 N.Y.S.2d 126 [2d Dept. 2014], quoting Matter of Placido v. County of Orange , 112 A.D.3d 722, 723, 977 N.Y.S.2d 64 [2d Dept. 2013].

Here, Petitioner argues that Respondent Urban Dove acquired actual knowledge of the facts giving rise to the claim of conscious pain and suffering at the time of the shooting because Respondent was aware of the shooting itself and there are text messages from Coach Zay, a coach working at Urban Dove, to Petitioner ...