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Plaintiff's untimely Notice of Claim cannot be deemed timely served

McCullum v. New York City Housing Authority, Index No. 25275/2016E (Sup.Ct. Bronx Cty. 2017)

Plaintiff could not proceed with an action against the New York City Housing Authority where her notice was provided nine months after her accident, prejudicing defendant, and she failed to provide a reasonable excuse for the delay.

Pursuant to Public Housing Law section 157(2), an action against the Housing Authority for damages for personal injuries must be commenced within one year and ninety days after the cause of action accrues, "provided that a notice of the intention to commence such action shall have been served upon the authority." The Notice must comply with all of the requirements of General Municipal Law section 50-e, including the requirement that the Notice is served "within ninety days after the claim arises." A defective Notice of Claim cannot be rectified by service of an untimely Notice of Claim without leave of court.

Plaintiff moved for an order deeming her notice of claim timely served, contending that her pain and disability after her trip and fall prevented her from serving notice.

The Housing Authority demonstrated that it had been prejudiced by the delay. It had no basis to know that plaintiff had an accident since the fall occurred inside of her apartment at 3:45 a.m. Plaintiff did not inform it that an accident had occurred until nearly 120 days after accident, and gave no notice of any intention to bring a lawsuit until more than six months had passed and the allegedly defective condition was repaired. The Housing Authority also showed that plaintiff's contention that she was incapacitated for nine months following the accident was not supported by the record or law. The Court agreed that Housing Authority was prejudiced because it was unable to take photos of the accident location and/or measurements and did not have an expert examine the area prior to the repair. No reasonable excuse was offered for the delay.

AGF&J partner Dennis J. Monaco successfully opposed plaintiff's motion.