Rosenbaum v. City of New YorkRosenbaum v. City of New York
On August 31, 1993, plaintiff purchased an apartment building at 31-33 Mt. Hope Place in the Bronx. In November of the same year, plaintiff and the City entered into an in rem agreement, and plaintiff paid $64,000 to discharge all existing liens for real estate taxes, water, sewer, rent and emergency property repairs. However, prior to plaintiff’s purchase of the building, the City had made additional repairs to the property, at its expense, and had not included those costs in the in rem agreement. The repairs were overseen by a court-appointed 7-A Administrator and were financed by a loan of $160,000 from defendant Department of Housing Preservation and Development (HPD).1 Plaintiff had no knowledge of these repairs or the loan.
In March 1994, HPD sent plaintiff a letter advising him that he was responsible for the $160,000 loan, and that the property was subject to liens being recorded against it. HPD warned that it would commence “enforcement of said liens, which may include a levy on all rents as well as a foreclosure action.” HPD filed a statement of account with the City Collector for $160,000,
On August 18, 1994, less than 90 days after the filing of the May 28 liens, plaintiff’s attorney wrote a letter to an attorney for HPD. The letter identified the subject property, 31-33 Mt. Hope Place, and it gave the date that plaintiff purchased the property. It also recited that a title company had insured title to the property only after plaintiff entered into an in rem agreement with the City, by which he satisfied “all charges that might be due.”
With respect to the subsequent $160,000 liens, that letter stated:
“Clearly there is no legal basis for these liens. I explained this to you and to date no one has provided any reason for the City’s failure to follow the law and yet to slander Mr. Rosenbaum’s title by placing these liens on the property almost one year after title passed.
“Unless these liens are removed forthwith then Mr. Rosenbaum may lose his current sale and be substantially damaged. If an action is brought due to City’s unlawful refusal to remove the illegal liens, the owner is entitled not only to costs but legal fees as well. I hope this will not be necessary” (emphasis supplied).
On October 14, 1994, plaintiff and his attorney met with five individuals from HPD, including its Assistant Commissioner. That same day, plaintiff’s attorney sent another letter to the same attorney at HPD to whom the August 18 letter was sent, summarizing the parties’ positions. The October 14 letter concluded: “I shall deem this to be the City of New York’s and your department’s complete position of this matter. . . . If after you have received this and the law, you still do not vacate these clearly improper and unenforceable liens from this property on or before 10/18/94, then I will have no choice but to direct my client to commence an action not only to discharge same, but for all damages, including counsel fees and punitive damages for the City’s punitive refusal to comply with the law.”
There was no response to this letter, and on October 21, 1994, plaintiff commenced this suit. He pleaded two causes of action: one, that the liens were illegal; and two, that they constituted slander of title. On December 16, 1994, the City started a separate action to foreclose on the liens.2 On January 6, 1995, plaintiff served a formal notice of claim with the City Comptroller. The City then served its answer on or about January 17, 1995.
Plaintiff and the City again moved for summary judgment, and the IAS court denied both the motion and the cross motion. This Court affirmed, holding that there were unresolved factual issues as to whether the liens were reasonably calculated to cause harm and as to plaintiff’s damages (5 AD3d 154 [2004]). On April 26, 2004, the date set for trial, the City moved to dismiss plaintiff’s action, arguing for the first time that plaintiff failed to file a timely notice of claim. In the order appealed, the IAS court granted the City’s motion. It held that as plaintiff did not serve either the Comptroller or Corporation Counsel, there was “a fatal defect mandating the dismissal of the action.” It also concluded that the claim for slander of title accrued at the time a prospective sale was lost because of the cloud on the title. Further, the IAS Court said: “[g]iving plaintiff every possible benefit of the doubt as to the information available to the City at the time the notice of claim was filed, and even for a year after, plaintiff did not serve sufficient notice on the City of his claim for slander of title in a timely fashion.” We reverse.
The City takes issue with plaintiff’s assertion that the August 18 letter satisfied his obligation to serve a notice of claim, arguing that the letter does not satisfy the requirements of
The August 18 letter was not sworn to by plaintiff, and was drafted by his attorney. However, the letter provided HPD with all of the facts pertinent to his claim, including the address of the property, and that title to it had been slandered due to the $160,000 liens improperly recorded by defendant HPD on May 28, 1994 (see Montana v Incorporated Vil. of Lynbrook, 23 AD2d 585 [1965] [letter which did not meet the technical requirements of
The City next challenges whether the service of the August 18 letter satisfied the statute. It argues that mailing a letter to an attorney at HPD rather than to the Comptroller or Corporation Counsel is a fatal defect.
HPD is an agency of the City, and counsel for HPD are “attorney[s] regularly engaged in representing” the City. Thus, the
The purpose of the notice of claim requirement is to enable the public corporation, here the City of New York, to investigate the claim and to obtain and preserve evidence promptly. Courts have consistently held that the notice of claim statute,
Further,
Finally, the City contends that the August 18 letter is deficient, because, at the time it was written, plaintiff had no actionable claim for slander of title. The City argues because plaintiff commenced the action on October 14, 1994, and it filed
The elements of a cause of action for slander of title are: a communication (1) falsely casting doubt on the validity of complainant’s title; (2) reasonably calculated to cause harm; and (3) resulting in special damages (Brown v Bethlehem Terrace Assoc., 136 AD2d 222 [1988]). “The gist of the action is false disparagement of title resulting in impairment of vendibility” (44 NY Jur 2d, Defamation and Privacy § 260).
Plaintiff’s cause of action for slander of title accrued on May 28, 1994, the date the HPD recorded $160,000 liens impairing the vendibility of the property (105 E. Second St. Assoc. v Bobrow, 175 AD2d 746 [1991]; see also Ferran v Belawa, 241 AD2d 841, 844 [1997]; Lampert v Edelman, 24 AD2d 562, 563 [1965]). Those liens were based upon repair work done prior to plaintiff’s purchase, and were ultimately found unenforceable. Thus, as of the date of their recording, the value of plaintiff’s property was immediately diminished by at least $160,000.
The City cites Hanbidge v Hunt (183 AD2d 700 [1992]), in support of the argument that plaintiff’s claim did not accrue until plaintiff lost a prospective sale of the property. However, Hanbidge is distinguishable on its facts. In that case, defendant filed an easement limiting access to plaintiff’s property. Plaintiff did not find out about the easement until three years after it was filed, when a prospective purchaser refused to enter into a contract of sale. Plaintiff brought the action for slander of title, and defendant asserted that the claim was barred by the applicable statute of limitations. The Second Department rejected the contention that plaintiff’s claim was untimely, holding that plaintiff’s claim did not accrue until he was made aware of the easement and suffered damages by the lost sale (id. at 701). The City relies on the Hanbidge court’s statement that the slander of title claim only accrued in that case only upon a showing of “a tangible economic loss” due to the easement. Here, however,
McGuire, J., concurs in a separate memorandum as follows: Putting aside the issue of the timeliness of the August 18 letter as a notice of claim, the City’s sole contention is that the letter cannot be considered a notice of claim because it was mailed not to the Corporation Counsel but to Department of Housing Preservation and Development’s (HPD) deputy counsel. Far from otherwise arguing that it would be prejudiced by considering the August 18 letter as a notice of claim, the City urges that “the issue of prejudice is irrelevant” with respect to defects in the manner of service of a notice of claim. Although the City is correct that, with exceptions set forth in
The controlling statute requires that a notice of claim be served on the public corporation against which the claim is made and specifies that a copy of the notice must be delivered (be it personally or by registered or certified mail) “to the person designated by law as one to whom a summons in an action in the supreme court issued against such corporation may be delivered, or to an attorney regularly engaged in representing such public corporation” (
In essence, the City’s argument is that HPD’s deputy counsel is not an attorney “regularly engaged in representing” the City because he had “no authority to represent the City in general, or to settle claims against the City.” This argument is not persuasive, for nothing in the statute states or suggests that the attorney regularly engaged in representing the public corporation must have authority to represent the corporation “in general” or to “settle claims against the corporation.” Under settled principles of statutory construction, the City’s attempt to read those words into the statute must be rejected (see Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394 [1995]).
Moreover, particularly in smaller municipalities, private attorneys not uncommonly are “regularly engaged in representing” municipalities. These attorneys, presumably, do not generally have settlement authority, and they may regularly represent agencies or subunits of the municipality as opposed to the municipality itself. If the City’s position were accepted, the
I do not disagree with the majority’s statement of the purpose of
Finally, I agree with the majority both that plaintiff’s cause of action for slander of title accrued on May 28, 1994, and that the August 18 letter thus was timely.