QUEENS RESIDENTS GETS BENEFIT OF EARLIER TOLL OF TIME PERIOD TO SUE CITY WHERE THEIR FIRST APPLICATION FOR LEAVE TO SERVE A LATE NOTICE OF CLAIM WAS REJECTED BY COURT

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

Case: Augustin Ambrus v. City of New York

Date: July 12, 2011.

Appeal by the defendants, in an action to recover for property damage, from an order of the Supreme Court (Kevin J. Kerrigan, J.), dated February 5, 2010, and entered in Queens County, which denied their motion for summary judgment dismissing the complaint as time-barred.

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)

"HEY, WHO STUCK THAT HOLE IN MY UNDERPANTS?" -- POLICE BRUTALITY? -- ATTORNEY FEES  (Posted by Queens injury attorney Gary E. Rosenberg on July 1, 2010)  

The Court of Appeals has long recognized that CPLR 204(a) tolls the one-year and 90-day statute of limitations governing tort claims against municipal defendants while a motion to serve a late notice of claim is pending. The toll has been held to run from the date an application for leave to serve a late notice of claim is made to the date upon which an order granting that relief goes into effect. The sole issue raised on this appeal is whether, in a situation in which a court declines to sign an initial order to show cause for leave to serve a late notice of claim on procedural grounds, but a subsequent application for the same relief is granted, the period of time in which the earlier application is pending may also be excluded from the limitations period. For the reasons which follow, we conclude that the toll applies to the period in which the initial application is pending and, accordingly, that the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint as time-barred.

The plaintiffs, Augustine Ambrus and Katalin Ambrus, own a home located in the Glendale section of Queens. On August 8, 2007, a severe rainstorm caused flooding in the plaintiffs' neighborhood, allegedly due to the negligent repair and maintenance of the New York City sewer system. The plaintiffs claim that the flooding caused drain pipes in their home to burst, covering their basement and first floor with water and raw sewage. Many of the plaintiffs' possessions were allegedly damaged or destroyed, and their home sustained structural damage.

On November 6, 2007, 90 days after the flood, the plaintiffs, who were not yet represented by counsel, completed a form entitled "Property Damage Claim Against the City of New York for Water Damage or Loss." The claim form included several pages in which the plaintiffs listed the specific items of property which had allegedly been damaged or destroyed by the flooding of their home. The plaintiffs mailed the claim form to the New York City Comptroller's office on November 7, 2007, 91 days after the flood, where it was received on either November 8, 2007, or November 9, 2007. By letter dated November 30, 2007, the Comptroller's office informed the plaintiffs that their claim was being disallowed because it "was not filed within 90 days from the date of occurrence as required by the General Municipal Law Section 50-e."

On July 1, 2008, nearly 11 months after the flood, the plaintiffs, now represented by counsel, purchased an index number and submitted an order to show cause to the Queens County Supreme Court Clerk's office seeking leave to serve a late notice of claim on the City of New York and the Department of Environmental Protection. Although not entirely clear from the record, it appears that the order to show cause was rejected for filing. Two days later, on July 3, 2008, the plaintiffs' attorney, in accordance with a directive from the Clerk's office, filed an "updated" order to show cause. The July 3, 2008, order to show cause was assigned to Justice Phyllis Orlikoff Flug. In a memorandum dated July 14, 2008, Justice Flug stated that the "Application for Order to Show Cause is denied with leave to proceed by filing a Notice of Motion," and that "[n]o statutory requirement or justifiable time criticality has been demonstrated to warrant proceeding by Order to Show Cause."

More than three months later, on October 23, 2008, the plaintiffs served the City and the New York City Department of Environmental Protection (hereinafter together the defendants) with a notice of petition and supporting papers seeking, in effect, to deem their attached amended notice of claim timely served. In an order dated March 9, 2009, Justice Flug granted the application, emphasizing that the City had acquired actual notice of the facts underlying the claim within a reasonable time period because the plaintiffs' original notice of claim, which had been filed approximately three days late, "contained specific details of the alleged cause and location of the flood and an itemized list of damages."

Less than one month after their second application was granted, on April 7, 2009, the plaintiffs commenced this action against the defendants.

The defendants subsequently moved for summary judgment dismissing the complaint upon the ground that it was barred by the one-year and 90-day statute of limitations set forth in General Municipal Law § 50-i(1). Although the defendants acknowledged that the statute of limitations was tolled while the plaintiffs' application to deem their amended notice of claim timely served was pending, the defendants argued that even excluding such period, the statute of limitations expired prior to the commencement of this action on April 7, 2009. The plaintiffs opposed the motion, contending that the action was timely commenced because the statute of limitations was also tolled between July 3, 2008, and July 14, 2008, while their initial application to proceed by order to show cause for leave to serve a late notice of claim was pending. Adding together the period when both applications were pending, the plaintiffs calculated that the statute of limitations was tolled for 157 days, and did not expire until April 12, 2009. In reply, the defendants maintained, relying upon the 1989 decision of the Appellate Division, First Department, in Matter of Rieara v. City of N.Y. Dept. of Parks & Recreation (156 A.D.2d 206), that the plaintiffs were not entitled to a toll for the period during which their initial application was pending.

In an order dated February 5, 2010, the Supreme Court denied the defendants' motion for summary judgment, concluding that the action was not time-barred because the statute of limitations was tolled for the periods when both the plaintiffs' initial application for leave to serve a late notice of claim and their second application for the same relief were pending. In its order, the Supreme Court concluded that Rieara was distinguishable because the plaintiffs in that case did not make their second application for leave to serve a late notice of claim until the statute of limitations had already expired, and the primary focus of that decision was whether the second application should relate back to the plaintiffs' timely made initial application.

The sole issue raised on this appeal, upon which the timeliness of this action turns, is whether the plaintiffs were entitled to a toll for the 12-day period from July 3, 2008, when they filed their first order to show cause seeking leave to serve a late notice of claim, to July 14, 2008, when the Supreme Court declined to sign that application on procedural grounds only. Although the defendants concede that the statute of limitations is tolled from the time a plaintiff commences a proceeding to obtain leave to serve a late notice of claim until an order granting that relief goes into effect, they continue to maintain, relying upon Rieara, as well as another First Department decision, that the toll is inapplicable where a motion for such leave has been denied. The defendants argue that, as a matter of policy, "there is no sound reason for courts to toll the time to commence an action against a municipality during the pendency of an unsuccessful application for leave to serve a late notice of claim where the order denying the application is rendered within the Statute of Limitations. In such case, there is no bar to timely renewal of the application." In response, the plaintiffs contend that the toll should apply during each period an application for leave to serve a late notice of claim is under consideration by the court because an action cannot be commenced against municipal defendants until such leave is obtained.

The statute of limitations which governs this action is set forth in General Municipal Law § 50-i(1), which requires tort actions against municipal defendants to be commenced "within one year and ninety days after the happening of the event upon which the claim is based." Since the plaintiffs seek to recover for the property damage that they suffered when their neighborhood flooded on August 8, 2007, their claim accrued, and the limitations period began to run, on that date. Accordingly, in the absence of any tolling periods, as calculated by the defendants, the one-year and 90-day limitations period would have expired on November 5, 2008, more than five months prior to the commencement of this action. However, it is undisputed that the statute of limitations was tolled from October 23, 2008, when the plaintiffs served their second application seeking an order deeming their amended notice of claim timely filed, until March 13, 2009, when the order granting that application was entered. Extending the statute of limitations solely by this additional 142-day period would have required the plaintiffs to commence their action no later than March 27, 2009. Thus, this action, commenced on April 7, 2009, is time-barred unless the plaintiffs are also entitled to a toll for the 12-day period from July 3, 2008, when they filed their "updated" order to show cause for leave to serve a late notice of claim, until July 14, 2008, when the Supreme Court declined to sign their application solely upon the procedural ground that it was unnecessary to proceed by order to show cause.

Nevertheless, Dominguez does not persuade us that the plaintiffs should be denied a toll for the 12-day period in which their first application to proceed by order to show cause for leave to serve a late notice claim was pending. The primary rationale underlying the Court of Appeals' decisions in Barchet and Giblin is that a plaintiff who has failed to serve a timely notice of claim may not properly commence an action against a municipal defendant until leave to serve a late notice of claim has been granted, and that during the period in which such a leave application is pending, the right to commence the action is not solely within the plaintiff's control. Thus, while the application is pending, the plaintiff is effectively prohibited from commencing the action. This rationale applies with no less force to the less commonly encountered situation presented here, where a court declines to sign an initial order to show cause on a purely procedural ground, and a second application is successful. The defendants' argument that the plaintiffs should not be entitled to a toll because the statute of limitations had not yet expired when the Supreme Court declined to sign their initial order to show cause fails to take into account the reasons which underlie the recognition of the toll. Moreover, in Matter of Hickman (75 N.Y.2d at 977), the Court of Appeals rejected a similar contention that the petitioner should be denied the benefit of the toll because she was granted leave to file a late notice of claim against MVAIC about 10 months prior to the expiration of the applicable limitations period.

Since the plaintiffs were effectively prohibited from properly commencing their action during the 12-day period in which their initial application to proceed by order to show cause for leave to serve a late notice of claim was pending, as well as the period during which their second application for similar relief was pending, they were entitled to a toll for both periods. Thus, the Supreme Court properly determined that this action was commenced prior to the expiration of the statute of limitations. To the extent that the First Department's decisions in Matter of Dominquez v. New York City Health & Hosps. Corp. (178 A.D.2d 186) and Matter of Rieara v. City of N.Y. Dept. of Parks & Recreation (156 A.D.2d 206) provide contrary authority, we decline to follow them. Accordingly, the order is affirmed.