Opinion
2013-12-10
A Joseph SILICATO, et al., Plaintiffs–Appellants, v. SKANSKA USA CIVIL NORTHEAST INC., et al., Defendants, New York City Department of Environmental Protection, Defendant–Respondent.
Davidson & Cohen, P.C., Rockville Centre (Robin Mary Heaney of counsel), for appellants. London Fischer, LLP, New York (James Walsh of counsel), for respondent.
Davidson & Cohen, P.C., Rockville Centre (Robin Mary Heaney of counsel), for appellants. London Fischer, LLP, New York (James Walsh of counsel), for respondent.
TOM, J.P., FRIEDMAN, ACOSTA, MOSKOWITZ, GISCHE, JJ.
Order, Supreme Court, New York County (Lucy Billings, J.), entered October 1, 2012, which, to the extent appealed from as limited by the briefs, granted defendant-respondent New York City Department of Environmental Protection's motion to dismiss the complaint as against it for failure to serve the City of New York with a notice of claim pursuant to General Municipal Law § 50–e, and order, same court and Justice, entered June 6, 2013, which, upon granting plaintiffs' motion to renew, adhered to its afore-mentioned October 1, 2012 determination, unanimously affirmed, without costs.
In this action seeking to recover for personal injuries suffered by plaintiff Joseph Silicato in the course of a construction project, plaintiffs' service of a notice of claim on the law department of a City agency failed to satisfy the requirements of General Municipal Law § 50–e(3)(a). The statute permits service on 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.” The New York City Comptroller and the Corporation Counsel are persons designated to receive service of process (Administrative Code § 7–201 [a]; CPLR 311[a][2] ), and, as a rule, the Corporation Counsel is the “attorney and counsel for the city and every agency thereof and shall have charge and conduct of all the law business of the city and its agencies” (N.Y. City Charter § 394 [a] ). While we have recognized in particular cases that an attorney who is actually representing a public corporation in the very matter in issue may be an appropriate person to receive service of a notice of claim (Rosenbaum v. City of New York, 24 A.D.3d 349, 353–354, 806 N.Y.S.2d 543 [1st Dept. 2005], revd. on other grounds8 N.Y.3d 1, 828 N.Y.S.2d 228, 861 N.E.2d 43 [2006]; Losada v. Liberty Lines Tr., 155 A.D.2d 337, 547 N.Y.S.2d 307 [1st Dept. 1989] ), in the instant matter involving Labor Law and negligence causes of action, the Corporation Counsel ordinarily represents the City and service on the agency's legal department was therefore ineffective ( see Khela v. City of New York, 91 A.D.3d 912, 937 N.Y.S.2d 311 [2d Dept. 2012]; Acevedo v. City of N.Y. Dept. of Transp., 227 A.D.2d 245, 642 N.Y.S.2d 291 [1st Dept. 1996]; Herrera v. Duncan, 13 A.D.3d 485, 787 N.Y.S.2d 88 [2d Dept. 2004] ).
There is no basis for finding estoppel (Acevedo, 227 A.D.2d at 245, 642 N.Y.S.2d 291), and plaintiff did not establish a basis for excusing a defect in service under General Municipal Law § 50–e(3)(c).