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Mouzalas v. City of New York12/9/2003
This opinion is uncorrected and will not be published in the printed Official Reports.
The following papers, numbered 1 to 4 were read on this motion for:
LATE NOTICE OF CLAIM:
Papers Numbered
Notice of Motion/Order to Show Cause - Affidavits - Exhibits 1,2
Cross-Motion: [ ] Yes [ X ] No
Upon review of the foregoing documents, it is ordered that petitioners' application to serve a late notice of claim upon the Hudson River Park Trust ("HRPT") is granted as detailed below.
Petitioners seek to serve a late notice of claim on respondent HRPT for personal injuries allegedly sustained by petitioner Patricia Mouzalas on September 29, 2002, when she fell while rollerblading on the bicycle path along West Street, in the vicinity of 30th Street. Petitioners allege that she fell on a sunken portion of asphalt, measuring 8 feet in length and 4 feet in width, which was excavated and improperly backfilled and capped by a contractor.
Petitioners state that " t is not clear at this time what entity is responsible for the bike path." [OSC, Aff. of Gene L. Chertock. Esq.]. Since "West Street and the piers and the sidewalks were obviously City thoroughfares" and "West Street also was at one time (and still may be) a state arterial highway," petitioners served a notice of claim upon the City and State on December 19, 2002. On March 31, 2003, based upon petitioners' request under the Freedom of Information Law, the New York City Department of Parks and Recreation informed petitioners that "the bike path . . . is actually under the jurisdiction of Hudson River Park Trust, rather than New York City / Parks & Recreation." [OSC, Exh. F].
The HRPT is a "public benefit corporation" created by the New York State legislature in 1998 by enactment of the Hudson River Park Act (the "Act"). When bringing a claim for personal injuries against HRPT, section 11 of the Act and General Municipal Law § 50-e require service of a notice of claim within 90 days of the accident. Additionally, section 11 provides that the action must be commenced within one year of the accident. As such, the latest possible date that petitioners could have filed a notice of claim against HRPT, while remaining within the statutory requirements of General Municipal Law § 50-e(5), was December 30, 2002. Petitioners served HRPT with a notice of claim on May 28, 2003. While their claim falls within the Act's one year statutory limit, the notice of claim is untimely by approximately five months. On or about June 2, 2003, petitioners filed the within application for an order granting leave to file a late notice of claim upon HRPT, which HRPT opposes. No other defendant has submitted papers in response to the instant petition.
Petitioners' argument with respect to the service a notice of claim on HRPT is two-fold. First, they contend that the timely service of a notice of claim on both the City and State constitutes timely service on HRPT. Petitioners purport that since HRPT is "in actuality a partnership between the City and State," HRPT should be deemed to have been served by service on its partners. [OSC, Aff. of Gene L. Chertock, Esq.]. Petitioners further contend that, while the Act requires service of a notice of claim, it does not designate an agent or clearly state that the notice of claim must be served on HRPT itself. Instead, petitioners argue that the Attorney General appears to be the designated legal arm of HRPT. [OSC, Exh. J, §7(1)(d)(viii)]. In opposition, HRPT argues that "HRPT is a distinct legal entity that cannot be charged with notice by virtue of claims served on other public entities." [Aff. of Bradley J. Corsair, Esq.
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