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Late Notice of Claim Should Not Have Been Deemed Timely (Sua Sponte, Nunc Pro Tunc)—the 90 Days Started Running When Plaintiff’s Asthma Symptoms Worsened, Not When a Doctor Connected the Symptoms to Mold in the Apartment—the Plaintiff Did Not Make a Motion for Permission to File a Late Notice of Claim

The First Department determined Supreme Court should not have, sua sponte (in the absence of a motion by the plaintiff), deemed plaintiff’s late notice of claim timely filed nunc pro tunc. The claim alleged mold resulting from a leak in plaintiff’s New York City Housing Authority (NYCHA) apartment exacerbated plaintiff’s asthma.  The First Department found that the cause of action accrued when plaintiff’s symptoms worsened, no later than February, 2011, not when a connection between the mold and plaintiff’s symptoms was suggested by a doctor in March 2011:

[Plaintiff] was required to file a notice of claim within 90 days after “the date of [her] discovery of the injury” or the date on which “through the exercise of reasonable diligence the injury should have been discovered” (CPLR 214-c[3]; see General Municipal Law § 50-e[1][a]…). NYCHA established that plaintiff’s claim accrued no later than February 2011, by relying on plaintiff’s testimony that her asthma symptoms worsened, resulting in more frequent attacks and hospital visits, starting in September or December of 2010, or January or February of 2011, when she was prescribed additional medications, as reflected in her hospital records. Thus, the notice of claim, filed over 90 days later in June 2011, without leave of court, was late and without effect … .

Plaintiff argues that her claim did not accrue until March 2011, when a doctor noted a connection between her symptoms and the mold in her apartment. However, a “cause of action for damages resulting from exposure to toxic substances accrues when the plaintiff begins to suffer the manifestations and symptoms of his or her physical condition, i.e.[,] when the injury is apparent, not when the specific cause of the injury is identified” … .

The court lacked authority to deem the late notice of claim timely filed nunc pro tunc, since plaintiff never moved for such relief and the statutory time limitation for bringing the claim had already expired when NYCHA moved for summary judgment … . Vincent v New York City Hous. Auth., 2015 NY Slip Op 04767, 1st Dept 6-9-15

 

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