MARGARET M. BOVICH, Appellant, v EAST MEADOW PUBLIC LIBRARY, Respondent.
Supreme Court, Appellate Division, Second Department, New York
February 7, 2005
[789 NYS2d 511]
Rosenthal Curry & Kranz, LLP, East Meadow (Patrick W. Curry of counsel), for appellant.
Hoffman & Behar, LLP, Mineola (Warren S. Hoffman of counsel), and Mischel, Neuman & Horn, PC, New York City (Scott T. Horn of counsel), for respondent.
OPINION OF THE COURT
S. MILLER, J.
This appeal presents the opportunity to resolve an issue of municipal law that has not heretofore been explicitly addressed by any court of this state. Before suing a public library in tort for damages for personal injury, must the plaintiff comply with the notice of claim requirements of
Factual Background
On March 7, 2002, the plaintiff Margaret M. Bovich, then 86 or 87 years of age, tripped over an allegedly uneven sidewalk slab near the entrance to the defendant East Meadow Public Library (hereinafter the library). The plaintiff fell on her right side and fractured her right hip. At least one library employee came to the plaintiff‘s aid, helped her to a chair, and called for an ambulance. The рlaintiff was hospitalized and incapacitated for at least one month following her injury; her fractured hip required surgical repair.
On or about July 13, 2002, the library had repairs performed on the uneven concrete near its entrance. The plaintiff became aware of this in August 2002 and decided to consult an attorney.
Procedural Background
By notice of motion dated February 11, 2003, the library moved, pursuant to
On or about February 27, 2003, the plaintiff opposed the library‘s motion, and cross moved for leave to serve a late notice of claim in the event the court determined that a notice of claim was in fact a condition precedent to suit against a public library. Addressing the library‘s motion, the plaintiff argued that the library was not a “municipal corporation” as defined by
In the alternative, the plaintiff asked for leave to serve a late notice of claim. The plaintiff averred that after her accident, she was aided by library employees, who called for an ambulance and attended to her until medical aid arrived. Furthermore, the plaintiff pointed out, during the summer of 2002 the library repaired the uneven concrete near the entrance where she fell. In the memorandum of law in support of the cross motion, the plaintiff‘s counsel asserted that library employees had compiled a written report of the accident. Thus, the plaintiff averred, the library had actual notice of the facts underlying her claim and would not be prejudiced by the service of a late notice of claim. Furthermore, counsel pointedly argued that in the absence of any statute expressly requiring the service of a notice of claim as a condition precedent to a suit against the library, the plaintiff‘s failure to do so within 90 days after her fall was even more excusable. These reasons, along with her postaccident hospitalization, the plaintiff asserted, sufficed to warrant the granting of her cross motion for leave to serve a late notice of claim. A proposed notice of claim, dated February 27, 2003, was submitted with the cross motion.
In response to the plaintiff‘s cross motion, the library submitted opposition papers dated April 28, 2003, and a second motion to dismiss the complaint, this one pursuant to
To bolster this argument, the library cited Portnow v Shelter Rock Pub. Lib. (125 AD2d 382 [1986]) where the plaintiff was permitted to amend her notice of claim, and Skay v Public Lib. of Rockville Ctr. (238 AD2d 397 [1997]) where this Court af-
On the issue of prejudice, the library charged that it had actually been greatly prejudiced by the plaintiff‘s failure to serve a timely notice of claim. Because she hаd not done so, the library had not provided timely notice to its liability insurer which had disclaimed coverage as a result. As such, and in the absence of an excuse for the extensive delay in seeking leave, the library argued that the plaintiff‘s cross motion for leave to serve a late notice of claim should have been denied, and the library‘s motion to dismiss due to the plaintiff‘s failure to serve a timely notice of claim, should be granted.
In reply, thе plaintiff reiterated the argument that a notice of claim was not a condition precedent to suit against a public library, but if the court disagreed, then her cross motion should be granted because the library received contemporaneous actual notice of the plaintiff‘s accident and compiled a written incident report. Furthermore, in response to the library‘s claim that the plaintiff‘s failure to serve a timely notice of claim was prejudicial because this directly led the library‘s insurer to disclaim coverage, the plaintiff argued that the relevant inquiry was whether the library would be prejudiced in defending against the plaintiff‘s claims on the merits, not whether its insurer had disclaimed coverage. Because it received actual contemporaneous notice, the library was not genuinely prejudiced. Accordingly, the plaintiff asked that her cross motion be grantеd, and the library‘s motion to dismiss for failure to serve a timely notice of claim, be denied.
Upon the foregoing papers, the Supreme Court determined that the library was indeed a public corporation, and thus the
The library accurately observed that “[p]ublic libraries have never been deemed a public corporation exempt from the service of a [n]otice of [c]lаim requirement.” It is equally accurate, however, to state that no statute or decisional law has expressly included public libraries to be among those entities which are entitled to service of a timely notice of claim as a condition precedent to suit. While the law is somewhat unclear insofar as public libraries are concerned, we are persuaded that a public library is a variety of public corporation suсh that it is entitled to the service of a notice of claim as a condition precedent to suit.
A search of the New York statutes database in Westlaw reveals 105 laws containing the term “public library.” Not one defines exactly what type of corporation a public library is. The plaintiff contends that the library is a “district corporation . . . other than a municipal corporation” as defined by
There are many sound reasons to hold the plaintiff‘s suit against the librаry to be subject to notice of claim requirements under
The plaintiff relies upon Matter of Maik v Massapequa Lib. Bd. of Trustees (46 Misc 2d 159 [1965], supra), which held that a notice of claim served on a board of education could not be amended to assert a claim against a public library because they are distinct entities. In dictum, the court observed that it was not clear that any notice of claim was even required as a condition precedent to suit against a public library, but that the parties had assumed the existence of suсh condition. It appears that similar assumptions were made in the cases upon which the library relies, Portnow v Shelter Rock Pub. Lib. (125 AD2d 382 [1986], supra) and Skay v Public Lib. of Rockville Ctr. (238 AD2d 397 [1997], supra), where issues were raised as to the propriety of amendments to notices of claim served upon public libraries. In neither of those cases, however, was the issue raised or decided as to whether a notice of claim was in fact required as a condition precedent to suit against a public library. Neither Portnow nor Skay provide any authority for the library‘s contentions (see Matter of Curcio v Boyle, 147 AD2d 194, 197 [1989]).
The library places great reliance upon the decision in Donnelly v McLellan (889 F Supp 136 [1995]), in which the United Statеs District Court for the District of Vermont, applying New York law, held that a notice of claim requirement applicable to a county, also applied to its county public health service. In that medical malpractice action, the plaintiffs sued, inter alia, the defendant Washington County Public Health Service (hereinafter WCPHS) regarding allegedly negligent postbirth medical care. On the eve of trial, WCPHS moved to dismiss, arguing that it had never been servеd with a notice of claim; WCPHS argued that as an agency of Washington County, it was covered by
The District Court determined that under choice of law analysis, the case was to be decided in accordance with New York law. However, under New York law the precise issue before it had not been decided. Thus, the District Court undertoоk the task of making “a reasoned prediction concerning whether or not the New York Court of Appeals would apply [General Municipal Law § 50-i] to WCPHS” (id. at 140).
The District Court began by observing that New York courts had applied notice of claim requirements to municipal agencies in the past despite apparent statutory silence.3 Of greater significance, the District Court examined the close fiscal ties between the WCPHS and Washington County tо conclude that the two entities were so closely interconnected as to be virtually indistinguishable; the county was the real party in interest. The same is true herein.
As noted, the district created the library pursuant to
Leave to Serve a Late Notice of Claim
Having determined that a notice of claim was required as a condition precedent to suit, we further hold that the Supreme Court improvidently denied the plaintiff‘s cross motion fоr leave to serve a late notice of claim pursuant to
It is uncontroverted that after her fall, the plaintiff was assisted by at least one identified library staff member, who helped her to a chair and called for an ambulance. It is also uncontroverted that an incident report was prepared. Thus, the library received contemporaneous actual notice of the facts underlying the plaintiffs’ claim, and that her injuries were sufficiently serious as to warrant an investigation (see Frith v New York City Hous. Auth., 4 AD3d 390 [2004]; Matter of Russo v Monroe-Woodbury Cent. School Dist., 282 AD2d 465 [2001]; Matter of Hayes v Peru Cent. School Dist., 281 AD2d 794 [2001]; Johnson v New York City Tr. Auth., 278 AD2d 83 [2000]; Matter of Drozdzal v Rensselaer City School Dist., 277 AD2d 645 [2000]).
Secondly, the plaintiff, an octogenarian, fractured her hip and was physically incapacitated after her fall. The plaintiff underwent surgery and wаs hospitalized for a month. While the library faults the plaintiff for not serving a notice of claim with alacrity following her hospital discharge, it is reasonable to infer that the plaintiff‘s mobility remained limited for some time thereafter. It appears that only after she learned of the library‘s repair of the sidewalk in the summer of 2002 did the plaintiff first consult an attorney whom she apparently retained in August; he immediately sent a demand letter. And while counsel did not immеdiately serve a notice of claim or seek leave to serve a late notice until the library made its first motion to dismiss, the plaintiff had a very reasonable excuse for not serving a notice of claim sooner: there was no law explicitly requiring her to do so. While a plaintiff‘s ignorance of the law requiring the serving of a notice of claim is generally not an excuse for a late serving (see Matter of Gofman v City of New York, 268 AD2d 588 [2000]; Matter of Hernandez v City of New York, 259 AD2d 751 [1999]), here, there was no express law of
The library did not demonstrate the existence of any genuine prejudice as a result of the late serving. The library‘s primary contention before the Supreme Court was that because of the plaintiff‘s failure to serve a timely notice of claim, it never notified its insurance carrier of her claim, and thus the carrier disclaimed coverage. However, the library‘s argument is unpersuasive. The library did not proffer a copy of its liability insurance policy, but generally, policies require insureds to provide notice of potential claims as soon as reasonably practicable (see White v City of New York, 81 NY2d 955 [1993]; Yarar v Children‘s Museum of Manhattan, 4 AD3d 420 [2004]; M&N Mgt. Corp. v Nationwide Mut. Ins. Co., 307 AD2d 257 [2003]). The library knew that the plaintiff had fallen on its premises and had fractured her hip. The library had no reasonable belief of nonliability regardless of whether or not the plaintiff served a notice of claim in the first 90 days (see White v City of New York, supra). The library failed to notify its insurer at its peril, not because of the plaintiff‘s delay in serving a notice of claim.
Nor did the library demonstrate the existence оf prejudice due to the fact that the uneven walkway was repaired in July 2002, before the plaintiff sought leave to serve a late notice of claim, because a contemporaneous investigation was undertaken at the time of the plaintiff‘s fall (cf. Matter of Aguilar v Town of Islip, 294 AD2d 358 [2002]). And to the extent that the library may be hindered in its efforts to prove that the sidewalk was not in a defective or dangerous state, the plaintiff will be equally hindered.
Accordingly, the order is revеrsed insofar as appealed from, on the facts and as a matter of discretion, the motion to dismiss is denied, the cross motion for leave to serve a late notice of claim is granted, and the notice of claim dated February 27, 2003, is deemed served.
Adams, J.P., Cozier and Rivera, JJ., concur.
Ordered that the order is reversed insofar as appealed from, on the facts and as a matter of discretion, with costs, the motion to dismiss is denied, the cross motion for leave to serve a late notice of claim is granted, and the notice of claim dated February 27, 2003, is deemed served.