Motion by defendants, City of New York and New York City Fire Department, seeking dismissal of the within action, CPLR 321 l(a)[7] and other relief is decided as follows: For the purposes of the within application and upon a reading of the papers submitted herein, the following facts and procedural history are not in dispute. It appears that plaintiff, Annette Cordova-Bell (hereinafter “Cordova-Bell”), commenced this lawsuit seeking compensation for injuries allegedly sustained on December 6, 2011. On that date, she was a passenger on a bus which was involved in a collision with a New York City fire truck. Thereafter, on March 5, 2012, Cordova-Bell, through her attorney, served a Notice of Claim upon the New York City Fire Department in Brooklyn. The following day, it is claimed that the fire department sent a letter to Cordova-Bell’s attorney, returning the Notice of Claim, stating that pursuant to General Municipal Law 50-e, it was not authorized to accept service of said notice and suggested that same notice be properly filed with the office of the Comptroller of the City of New York. However, three (3) days later, in a correspondence dated March 9, 2012, the Office of the Comptroller of the City of New York, informed Cordova-Bell’s attorney that they acknowledged receipt of the claim and assigned it a claim number (See Exhibit “B” annexed to plaintiff’s opposition papers). It is undisputed that pursuant to a letter dated March 21, 2012 (See Exhibit “C” in plaintiff’s affirmation in opposition), a 50-h hearing was requested and same was held on May 1, 2012. On or about January 25, 2013, a Summons and Complaint was filed. Included therein, was a loss of services claim brought by Gerard Bell as Cordova-Bell’s husband. An Answer in response was served (without any affirmative defense alleging lack of a proper service of the Notice of Claim) and discovery and other litigation has been ongoing over the last seven-plus years. Now, defendant, City of New York, requests dismissal due to plaintiff’s failure to properly serve a Notice of Claim. As part of the relief requested herein, defendant, City, seeks dismissal of all claims asserted against the New York City Fire Department. As such agency is not an incorporated entity and is without independent legal existence, but merely serves as an agency of the City of New York, it is not a “suable entity”, See, Valcin v. NY City Dept. Of Homeless Servs., 2009 U.S. Dist Lexis 91925 ( S.D.N.Y, 9/24/09). As a result, the claims asserted against the New York City Fire Department are dismissed. In addition, as plaintiff, Gerard Bell has failed to file a notice of claim as required by the General Municipal Law, such claims cannot continue. As a result, his derivative claims for loss of services is dismissed. It is well established that in any action founded upon tort, a Notice of Claim must be filed within ninety (90) days after the claim arises, General Municipal Law §50-e(l)[a]. Further, General Municipal Law §50-e(3)[a] says that such notice shall be served on the attorney regularly engaged in representing such public corporation. Based thereon, as the Comptroller was not served with the Notice, defendants contend that dismissal is warranted. This court does not agree. In Torres v. Board of Education, 13 AD2d 948, citing Zwyak v. Board of Education, 282 AD 704, the First Department held that where the notice of claim was erroneously served on the City Comptroller but came to the notice of the defendant, Board of Education, within the period set forth in GML §50-e, the answer served by the attorney representing the defendant and examined the plaintiff, the notice of claim was deemed valid. Moreover, General Municipal Law 50-e(3)[c] states that if a notice is served within the specified time, but in a manner not in compliance with the provisions of the subdivision, service shall be held valid if the public corporation against which the claim is made demands that the claimant or any other person interested in the claim be examined in regard to it or if notice is actually received by a proper person within the specified time. Here, it is undisputed that service of the notice of claim was not served on the proper person, and same was rejected pursuant to the letter dated the day after receipt of the notice. However, three days later, plaintiff received a letter of acknowledgment from a proper party who assigned it a claim number and demanded the appearance of the claimant at a hearing pursuant to GML 50-h, and where such hearing was conducted. This court finds that the letter of acknowledgment, sent three days after the rejection letter, serves as a cancellation of the rejection letter. As a result, this court finds reliance by plaintiff’s counsel on the letter of acknowledgment, the scheduling and conducting of a 50-h hearing and the filing of an Answer ( without any affirmative defenses relating to service), eliminated the basis to warrant counsel to make a motion seeking leave to have said notice deemed timely served nunc pro tunc, file a late notice or seek any other form of judicial intervention relating to the validity of the Notice of Claim in light of GML §50-e(3)[c] GML 50-e(3)[c] validating the service of this notice. In support of this application, defendant, City of New York, relies on the Court of Appeals case of Scantlebury v. N.Y. City Health and Hosps. Corp., 4 NY3d 606. However, such case is factually different than our case at bar. In Scantelbury, the plaintiff served the Comptroller’s office rather than the Health and Hospitals Corpration “HHC”, a separate entity. Here, plaintiff mistakenly served the Fire Department, which as stated before is not a separate entity but merely an agency of the City. Moreover, the proper person who is charged with the defense of the within action acknowledged receipt of said claim, scheduled and participated in the 50-h hearing and continued litigating this matter for over 7 years. Accordingly, upon service of a copy of this order on counsel for plaintiff, co-defendants and the clerk, defendant, City of New York’s motion is granted only to the extent that the claims against the New York City Fire Department are dismissed as is the claims brought by plaintiff, Gerard Bell. The action on behalf of plaintiff, Cordova-Bell shall continue. The above constitutes the decision and order of the court. Dated: April 6, 2021
