Opposition Brief — Diaz v. City of New York

No. 95-1558

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4s ew ew

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1995

CASSANDRA DIAZ, JUAN R. PEREZ AND

ANTONIO DIAZ, BY THEIR MOTHER AND

NATURAL GUARDIAN, ANGELINA PEREZ,

Petitioners,

- against -

THE CITY OF NEW YORK AND THE NEW YORK

CITY HEALTH AND HOSPITALS CORPORATION,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

NEW YORK SUPREME COURT, APPELLATE

DIVISION, SECOND DEPARTMENT

BRIEF IN OPPOSITION

LEONARD J. KOERNER,* PAUL A. CROTTY,

STEPHEN J. McGRATH, Corporation Counsel of

KRISTIN M. HELMERS, the City of New York,

of Counsel. Attorney for Respondents,

100 Church Street,

* Attorney of Record New York, New York 10007.

May 24, 1996 (212) 788-1072 or 1056

COUNTER-QUESTIONS PRESENTED

1. Should this Court deny the writ on

jurisdictional or prudential grounds, or both, where the

alleged Constitutional and section 1983 claims were never

properly presented to, and hence not passed upon, by the

state courts?

2. Even if petitioners’ failure to raise their

claims below does not provide a jurisdictional impediment

to review, should the writ be denied for lack of a substantial

federal question, (a) where this Court has consistently

upheld the authority of state legislatures to limit the right to

sue by imposition of conditions precedent and statutes of

limitations similar to the notice-of-claim provisions

contained in New York State’s General Municipal Law

sections 50-e and 50-i; (b) where petitioners’ alleged federal

claims reduce to the proposition that state decisional law

applying the notice-of-claim provisions is not uniform, but

this Court has equally consistently held that, in guaranteeing

equal protection and due process, the Fourteenth

Amendment does not assure uniformity of judicial decisions

or immunity from judicial error; and (c) where, in any

event, there was no error or lack of uniformity here

because, having concededly failed to file a notice of claim

within the required time period, petitioners’ quarrel is with

the lower court’s discretionary determination, after

considering the applicable statutory criteria, not to permit

late filing, and such a determination will by definition

depend on an assessment of circumstances which vary from

case to case?

TABLE OF CONTENTS

Page

COUNTER-QUESTIONS PRESENTED ...... i

TABLE OF AUTHORITIES ............. iv

ae 2

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS ............ 2

STATEMENT OF THE CASE

Re 4

Eg , 5 6s 5 0 6 ew bose 6 08 6

OPINIONS BELOW

A. Opinions of the Lower Court .......... 9

B. Opinions of the Intermediate

sets Appeliats Court ... 1... ee ees 1]

C. Opinions of the State Court of

Appeals in Denying Leave

EE ae eG lk sa ss 3 6 cs 6 Bes 0 0s 13

-ji-

REASONS FOR DENYING THE WRIT

POINT ONE

INASMUCH AS_ PETITIONERS’

ALLEGED CONSTITUTIONAL AND

SECTION 1983 CLAIMS WERE

NEVER PROPERLY PRESENTED TO,

AND HENCE NOT PASSED UPON,

BY THE STATE COURTS, THE WRIT

SHOULD BE DENIED ON

JURISDICTIONAL OR PRUDENTIAL

GROUNDS, OR BOTH. ......... Is

POINT TWO

BECAUSE PETITIONERS’ VAGUE

ALLEGATIONS OF DUE PROCESS

AND EQUAL PROTECTION

VIOLATIONS ARE BASED ON THE

PREMISE THAT A VALID STATE

LAW HAS BEEN MISAPPLIED, THIS

CASE DOES NOT PRESENT A

SUBSTANTIAL FEDERAL

QUESTION MERITING REVIEW BY

SE 3 kk we a oe eek 21

er 30

SE ree ee 31

TABLE OF AUTHORITIES

Cases: Page

Application of Crespo,

123 Misc. 2d 862, 478

N.Y.S.2d 319 (Sup. Ct., N.Y.Co., 1984) .... 2)

Bailey v. Anderson,

De SP RD, a we eee eee 15

Barber v. Dembroski,

as ee are 4S ee be te Oe es ee 17

Beck v. Washington,

369 U.S. 541 (1962) Id. at 555 ...... 19, 21

Black v. Cutter Laboratories,

ae Gs ee EE ee ee ek ee er 30

Chase Securities Corp. v. Donaldson,

ae as See. «a ea eee 22

Cohen v. Pearl River Union Free School District,

51 N.Y.2d at 256, 265, 434 N. Y.S.2d 138,

414 N.E.2d 639 (1980) ........6.. 22, 27

Crest Automobile Leasing v. Green,

211 A.D.2d 525, 622 N.Y.S.2d 441

Co Se, SE oie es ea te ewe oe 22

-iV-

Davidson v. Bronx Municipal Hospital,

64 N.Y.2d 59, 484 N.Y.S.2d 533, 473

Rk & & f.. ere era ee ee are

Dinh v. Rust International Corp.,

974 F.2d 500 (4th Cir., 1992) ..........

Dougias v. Stallings,

870 F.2d 1242 (7th Cir., 1989) .........

Eagle v. Paterson,

57 N.Y.2d 831, 455

N.Y.S.2d 759, 442 N.E.2d 56 (1982) .....

Guarrera v. A.L. Memorial Hospital,

51 A.D.2d 867, 380 N.Y.S.2d 161

(4th Dept., 1976), app. dismd, 39 N.Y.2d

942, 386 N.Y.S.2d 1029, 352 N.E.2d 897 (1976)

Illinois v. Gates,

462 U.S. 213 (1983) at 218-219 .........

MacMullen v. City of Middletown,

187 N.Y. 37, 79 N.E. 863 (1907) .......

Martinez v. California,

444 U.S. 277 (1980) 6. we we ee ee eee

22

24

24

17

23

15

23

21

Matter of Barbara C..,

64 N.Y.2d 866, 487 N. Y.S.2d

549, 476 N.E.2d 994 (1985).

iy le Se oe oe ee oe oe

Matter of Brown v. Board of Trustees,

303 N.Y. 484, 104 N.E.2d

kt: a ear

7 a oe on ee ee

McGoldrick v. Compagnie Generale,

309 U.S. 430 (1940) .....

Melahn v. Hearn,

60 N.Y.2d 944, 471 N.Y.S.2d

47, 459 N.E.2d 156 (1983)

S68 © &@2 @2@ 6 © & @ ®

Milwaukee Electric Railway & Light Co.

v. Wisconsin ex rel. Milwaukee,

252 U.S. 100(1920) .....

Montegino v. Canale,

792 F.2d 554 (Sth Cir., 1986)

Ornstein v. Regan,

604 F.2d 212 (2nd Cir., 1979)

-vi-

YS. &° 358.8 6 a ®

ce. 21S 6, b.8 SoS

17

23

15

17

20

24

23

Pausley v. Chalmoner,

54 A.D.2d 131, 388 N.Y.S 2d 35

(3rd Dept., 1976), app. dismd,

41 N.Y.2d 900, 388 N.Y.S.2d 35,

362 N.E.2d 641 (1975), app. denied,

41 N.Y.2d 805, 395 N.Y.S.2d 1025,

963 WOE TIS TT 6. eee es OS 23

Pierson v. City of New York,

56 N.Y.2d 950, 453 N.Y.S.2d

Gis. GP Paes SOE CASED 5 ws ok 8 ee 28

State Farm Fire and Casualty Co. v. LiMauro,

103 A.D.2d 514, 481 N.Y.S.2d 90

(2nd Dept., 1984), affd, 65 N.Y.2d 369,

492 N.Y.S.2d 534, 482 N.E.2d 13 (1985) ... 16

Street v. New_York,

Re Re Ct | re area 15

Sun Oil Co. v. Wartman,

Me ae Tee Oe ee ec eae wa es 22

Umansky v. N.Y. Met. Transit Authority,

111 A.D.2d 918, 491

N.Y.S.2d 33 (2nd Dept., 1985) .......... 23

-Vii-

Oe Ws io rae ee ev i bcs oe ae 2

ee ee ac wk a ar ee 2

Be Wiican WO Be ck cw tt 2, 19

New York General Municipal Law

I oes ck ie are % kw Ges 3, 32

| re 3, 20, 28

RI Ane ee 29

I ter a oe ale Win wo Gy a 3, 34

New York Civil Practice Law and Rules

EP ee rere 4, 35

OTHER AUTHORITIES

U.S. Supreme Court Rules

ee ee eee 2, a, 22

SM aoa he id a yh ia ck wb ok 4 id

Cohen and Karger, Powers of

the Court of Appeals

SE eg vw ee 214

-Vili-

No. 95-1558

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1995

CASSANDRA DIAZ, JUAN R. PEREZ AND

ANTONIO DIAZ, BY THEIR MOTHER AND

NATURAL GUARDIAN, ANGELINA PEREZ,

Petitioners,

- against -

THE CITY OF NEW YORK AND THE NEW YORK

CITY HEALTH AND HOSPITALS CORPORATION,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

NEW YORK SUPREME COURT, APPELLATE

DIVISION, SECOND DEPARTMENT

BRIEF IN OPPOSITION

a se

a eae a

JURISDICTION

Petitioners erroneously rely on 28 U.S.C. § 1254 to

invoke this Court’s jurisdiction. That provision applies

solely & veview of cases decided by federsi courts of

appeal, whereas 28 U.S.C. § 1257 governs writs of

certiorari in state court matters. However, as discussed

more fully in Point One, infra, the requirements of section

1257, and of Rules 10 and 14(1)(g)(i) of the Rules of this

Court, as interpreted and applied in this Court’s decisional

law, have clearly not been met, and the writ should be

denied for lack of jurisdiction without reaching the merits

of the petition.

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

On page 2 of their application, petitioners allege that

this case involves the Fifth and Fourteenth Amendments to

the United States Constitution and 42 U.S.C. section 1983.

Petitioners do not make reference to the state law provisions

2

whose application to the facts of this case allegedly violated

their federal rights, to wit: New York General Municipal

Law (“GML”) section 50-e(1) which, in pertinent part,

requires service of a notice of claim within 90 days after the

Claim arises in any tort case where a notice of claim is a

condition precedent to suit; GML section 50-i(1), which

makes a notice of claim a condition precedent in all

personal injury actions prosecuted against a municipality,

further providing that such actions must be commenced

within one year and 90 days after the happening of the

event on which the claim is based; and GML § 50-e(5),

which provides that, in its discretion, the court may extend

the original 90-day period for filing a notice of claim, as

long as the extension does not exceed “the time limited for

the commencement of an action” (i.e., the one year and 90

days of GML § 50-i[1], unless subject to a statutory toll).

GML § 50-e(5) also sets forth several factors to guide the

court in its discretionary determination of whether or not to

grant such an extension. These state provisions are

reproduced in full in the Appendix to this brief. Also

reproduced are the 10-year tolling provisions of New York

Civil Practice Law and Rules (“CPLR”) section 208

relating to infancy and insanity, which, under New York

law, extend the period during which a court is empowered

to exercise its discretion to grant leave to file a late notice

of claim, but which do not eliminate the threshold 90-day

requirement.

STATEMENT OF THE CASE

A. Factual Background

On December 12, 1986, at approximately 2:00 a.m.,

a fire broke out at 106 Hull Street, Brooklyn, New York

(65).' The fire then spread to 104 and 102 Hull Street,

' Numbers in parentheses not preceded by a letter refer to

pages in the Record on Appeal submitted to the New York

Supreme Court, Appellate Division, Second Department.

(continued...)

4-

buildings that were adjoined to one another by a common

wall (65). The infant petitioners and their mother, Angelina

Perez, were residents of 102 Hull Street (20).

Because of the fire, the occupants of 102 Hull Street

were assisted in exiting from the building by the New York

City Fire Department (66). After removal from the

building, the Fire Department contemporaneously prepared

“structural report” records indicating, inter alia, that mouth-

to-mouth resuscitation was performed on Cassandra Diaz by

Fire Fighter Rotanz (66, 67). The occupants of 102 Hull

Street who were injured as a result of the fire were then

taken to the hospital to receive treatment for their injuries

(68). Seventy-two hours after the incident everyone except

petitioner Cassandra Diaz and her infant brother, petitioner

' (...continued)

Parenthetical references preceded by the letters “PA” refer

to pages in the appendix to the imstant Petition for

Certiorari; the letters “RA” indicate pages in the appendix

to the respondents’ Brief in Opposition.

-5-

Juan Perez, were listed in fair or satisfactory condition (68).

Within three days after the incident, a third sibling,

petitioner Antonio Diaz, was released from the hospital in

satisfactory condition (68).

Although there is no mention in Fire Department

records, or any other records, petitioners claim that, when

being removed from the building, the infant Juan Perez “...

was dropped at least once by a fireman, striking his head

when he was dropped” (58). And even though, as noted

above, documentation concerning resuscitation efforts

appears in contemporary Fire Department records (67),

petitioners also allege that at “no time did any member of

the New York City Fire Department attempt to resuscitate

... Cassandra Diaz” (58).

B. Procedural History

In February of 1988, within the one year and 90-day

period of GML § 50-e(5), petitioners brought on a motion

seeking permission to file a late notice of claim against the

City of New York and the New York City Health and

Hospitals Corporation (hereinafter “HHC”)(7). In an order

dated April 11, 1988, the Supreme Court, County of Kings,

denied petitioners’ motion, with leave to make another

application on proper papers (PA 17a).

Inexplicably, that application was not made for

another three and one-half years, when, on September 26,

1991, petitioners, having obtained new counsel, sought

permission to file a late notice of claim (45). By order

dated October 18, 1991, the Supreme Court denied

petitioners’ motion on the merits (PA 6a).

On June 1, 1993, almost two years after the second

santhen bait tom desied and six end conbalf years after te

incident, petitioners moved to renew and reargue the

Supreme Court’s denial of the motion. By order dated

September 2, 1993, the Supreme Court, County of Kings,

denied the motion (PA 4a).

Petitioners sought review in the Appellate Division,

Second Department, which, inter alia, affirmed the lower

court’s order denying leave to serve a late notice of claim

on January 30, 1995 (PA 2a-3a). Petitioners thereupon

sought reargument in the Appellate Division or, in the

alternative, leave of the Appellate Division to appeal to

New York State’s highest court, the Court of Appeals.

This motion was denied by order entered April 10, 1995

(PA 11a-12a).

As permitted by CPLR section 5602(a), petitioners

then sought leave to appeal in the Court of Appeals itself.

This motion was dismissed in part and denied in part by

order dated September 7, 1995 (PA 13a-14a). Petitioners’

subsequent motion to reargue was denied by order of the

same Court dated December 28, 1995 (PA 16a).

ys

OPINIONS BELOW

A. ini f wer

In considering petitioners’ original 1988 motion, the

Supreme Court, Kings County (Bernstein, J.), found it

jurisdictionally defective, citing Application of Crespo, 123

Misc2d 862, 478 NYS2d 319 (Sup. Ct., N.Y.Co., 1984).

In Crespo, the Court held, inter alia, that where, as here,

a special proceeding is commenced to obtain permission to

file a late notice of claim before a summons and complaint

have been served, jurisdiction is not obtained merely by

mail service of a “notice of motion.” Accordingly, in the

instant Case, petitioners’ motion was denied on that ground,

but “without prejudice to another application brought on by

proper service” (PA 18a).

Concerning the second application, made three and

one-half years after issuance of the original order, the same

Court ruled on the merits, finding that permission to file a

late notice of claim should be denied because (1) the delay

in seeking leave had nothing to do with the injuries claimed

by the petitioners; (2) there was no showing that the

respondents had acquired knowledge of any of the facts

underlying the claim; and (3) given that situation, “a delay

of five years must, of necessity, result in prejudice” (PA

7a).?

Two years later, in denying petitioners’ motion to

renew or reargue, the Court found reargument inappropriate

because “[t]here were no errors in considering the facts

submitted in the prior motion” (PA 4a). As to renewal, the

Court pointed out, inter alia, that petitioners had not

*- We draw the Court’s attention to the fact that petitioners

erroneously insist that the Supreme Court “retroactively

rescinded its prior order granting leave to refile a late

notice of claim application.” Petition for Cert. at pp. ii

and iii (emphasis added). The Record demonstrates no

support for this proposition, which forms the linchpin for

almost all of petitioners’ claims. What the lower court did

in its October 1991 order was to consider the application,

ie., accept the refiling, but then determine that it should be

denied on the merits.

-10-

submitted, as normally required by New York practice, any

explanation of why the “additional facts” contained in the

renewal motion were not available when the original

application had been made (PA 4a). On the merits, the

Court stated that it was sympathetic to petitioners’ plight,

but that, given, inter alia, the passage of six and one-half

years since the fire, it felt compelled to deny the motion

(PA 5a).

B. Opinions of the Intermediate State Appellate

Court

In its January 30, 1995 opinion, the Appellate

Division dismissed petitioners’ appeal from the Supreme

Court’s 1993 order denying renewal or reargument on the

ground that, because petitioners’ motion was “based upon

facts that could have been raised at the time of the original

motion, and the petitioners offered no excuse for their

failure to present the evidence at that time,” the motion

was, in actuality, only one to reargue (PA 2a). Under New

-11-

York law, denial of a motion to reargue is not appealable

(id.). :

On the merits of the underlying appeal from the

Supreme Court’s 1991 order, the Appellate Division

reviewed the notice-of-claim requirements, noting that, in

considering whether to grant permission for late filing, a

court is statutorily required to take into account all relevant

factors -- including, specifically, whether the public

corporation acquired actual knowledge of the essential facts

constituting the claim within the Statutory 90 days, or soon

thereafter; whether the claimant was an infant, or mentally

or physically incapacitated; and whether the delay would

prejudice the public corporation in maintaining its defense

on the merits (PA 2a-3a). Here, the Appellate Division

' found (1) that petitioners had not proffered a legally

acceptable excuse for their delay, which was explained

neither by the mother’s alleged incompetency nor the

-12-

petitioners’ infancy; and (2) that respondents did not have

actual knowledge of the facts underlying the claim within

the 90-day period of GML § 50-e(1)(a). Accordingly, the

Appellate Division found that the lower court had not erred

in denying petitioners’ application to serve a late notice of

claim (PA 3a).

The Appellate Division issued no opinion in

connection with its subsequent April 10, 1995 order denying

both reargument and leave to appeal.

ie Opinions of the New York State Court of Appeals

in Denying Leave to Appeal

On the merits, the Court of Appeals denied leave to

appeal from that part of the Appellate Division’s order

affirming the Supreme Court’s October 18, 1991 order

denying leave to file a: late notice of claim, without.

elucidating its reasons for doing so. It dismissed that

portion of the motion for leave which sought review of the

Appellate Division’s determination that the Supreme Court’s

att.

subsequent September 2, 1993 order was an unappealable

denial of a motion to reargue, stating that the 1993 order

did not “finally determine the proceeding within the

meaning of the [state] Constitution” (PA 13a).*

REASONS FOR DENYING THE WRIT

POINT ONE

INASMUCH AS PETITIONERS’

ALLEGED CONSTITUTIONAL AND

SECTION 1983 CLAIMS WERE NEVER

PROPERLY PRESENTED TO, AND

HENCE NOT PASSED UPON, BY THE

STATE COURTS, THE WRIT SHOULD

BE DENIED ON JURISDICTIONAL OR

PRUDENTIAL GROUNDS, OR BOTH.

It is black-letter law that this Court will not consider

cases coming from the state courts unless the particular

question for which review is sought was “either raised or

* Under New York law, it is well-settled that “a

determination made subsequent to a final determination is

not itself a final determination for purposes of appeal to the

Court of Appeals.” Cohen and Karger, Powers of the

Court of Appeals, § 10, p. 42 (Rev. Ed., 1992) (emphasis

in original). Thus, the October 1991 order was final, but

the September 1993 order patently was not.

-14-

squarely considered and resolved” in the state forum.

Illinois v. Gates, 462 U.S. 213, 218, n.1 (1983). Accord,

Street v. New York, 394 U.S. 576, 581-582 (1969); Bailey

v. Anderson, 326 U.S. 203, 206-207 (1945); McGoldrick v.

Compagnie Generale, 309 U.S. 430, 434 (1940). This

principle is embodied in Rule 14(1)(g)(i) of the Rules of this

Court, which requires a petitioner seeking review by

certiorari to specify, inter alia, “the stage in the

proceedings ... when the federal questions sought to be

reviewed were raised; ... [and] the way in which they were

passed on [by the state courts]; ... so as to show that the

federal question was timely and properly raised and that this

Court has jurisdiction to review the judgment on a writ of

certiorari” (emphasis added).

Whether the “not pressed or passed upon below”

rule is considered jurisdictional or prudential, see, /llinois

v. Gates, supra, 462 U.S. at 218-219, it clearly dictates

-15-

denial of the instant petition. As petitioners themselves

describe the context in which they allegedly raised their

federal claims (see, Pet. for Cert. at p. 4, note 1), the state

courts could not, and hence did not, rule on them.

Petitioners concede that they never cast their claims

in terms of denial of due process (including denial of access

to the courts) and equal protection until submission of their

October 24, 1994 reply brief to the Appellate Division.

Pet. for Cert. at p. 4, note 1. This was patently untimely,

because the Appellate Divisions of this State have uniformly

announced that they will not consider new issues raised for

the first time in a reply brief. See, e.g., Crest Auto

Leasing v. Green, 211 AD2d 525, 622, NYS2d 441 (lst

Dept., 1995); State Farm Fire and Casualty Co. v.

LiMauro, 103 AD2d 514, 521-522, 481 NYS2d 90 (2nd

Dept., 1984), aff'd, 65 NY2d 369, 492 NYS2d 534, 482

NE2d 13 (1985).

ii

Nor is it of any moment that petitioners reiterated

their alleged due process and equal protection claims in

their initial motion in the Court of Appeals seeking review

by that Court, as well as in their subsequent motion to

reargue its denial. The New York State Court of Appeals

has repeatedly stated that it will not consider constitutional

issues raised for the first time in that court. See, e.g.,

Matter of Barbara C., 64 NY2d 866, 487 NYS2d 549, 476

NE2d 994 (1985); Melahn v. Hearn, 60 NY2d 944, 471

NYS2d 47, 459 NE2d 156 (1983); Eagle v. Paterson, 57

NY2d 831, 455 NYS2d 759, 442 NE2d 56 (1982); Barber

v. Dembroski, 54 NY2d 648, 442, NYS2d 768, 426 NE2d

175 (1981).

Furthermore, even if petitioners used the words

“due process” and “equal protection” in their Appellate

Division reply brief, and even if the Appellate Divisions of

this State would consider it acceptable to raise new issues

1%

for the first time in that context (which, as discussed above,

they would not), respondents submit that passing references

to these concepts, without developed analysis or argument,

are insufficient to satisfy the “pressed or passed upon

below” rule. In the context of the 28-page reply brief, for

example, the “constitutional” claims reduce to one sentence

on page | stating, in pertinent part, that “[t]he Petitioners

in this action have been deprived of their day in court and

have been denied their rights to due process and equal

protection of the laws, as guaranteed by the federal and

State constitutions, merely because their former counsel ...

moved for leave to file a late notice of claim by way of

notice motion [sic] instead of order to show cause.” This

Statement is basically reiterated on page 6: “Cassandra and

the other Petitioners are entitled to their day in Court.

They should not be denied due process and equal protection

of the law merely because their former counsel proceeded

-18-

"

:

\

}

$

by notice of motion instead of order to show cause and then

failed to correct their nonprejudicial, procedural error.”

Not a case is cited in support of the proposition that proper

application of validly imposed jurisdictional requirements,

or conditions precedent to suit, or statutes of limitations,

offends due process or must be subjected to an equal

protection analysis. Under such circumstances, we submit

that these issues were not just raised in an untimely manner,

but not even properly raised at all. Cf. Beck v.

Washington, 369 U.S. 541, 553 (1962).*

* The “separation of powers” claim does not appear until

even later, when petitioners moved to reargue in the

Appellate Division (motion at { 87), where it is simply

asserted in passing in an equally conclusory manner — /.é.,

without analysis. In addition, respondents have been

unable to locate anywhere in the pleadings and briefs below

a reference to a section 1983 claim.

-19-

POINT TWO

BECAUSE PETITIONERS’ VAGUE

ALLEGATIONS OF DUE PROCESS

AND EQUAL PROTECTION

VIOLATIONS ARE BASED ON THE

PREMISE THAT A VALID STATE LAW

HAS BEEN MISAPPLIED, THIS CASE

DOES NOT PRESENT A SUBSTANTIAL

FEDERAL QUESTION MERITING

REVIEW BY THIS COURT.

In setting forth certain of the “Considerations

Governing Review on Certiorari” in Rule 10 of its Rules.

this Court has cautioned that “[a] petition for a writ of

certiorari is rarely granted when the asserted error consists

of ... the misapplication of a properly stated rule of law,”

The decisional law is even more explicit:

We have said time and again that the

Fourteenth Amendment does not “assure

uniformity of judicial decisions ... [or]

immunity from judicial error ....”

Milwaukee Electric Ry. & Light Co. v.

Wisconsin ex rel. Milwaukee, 252 U.S.

100, 106 (1920).

at.

:

Beck_v. Washington, 369 U.S. 541, 554-555 (1962).

“Were it otherwise,” the Beck Court then observes, “every

alleged misapplication of state law would constitute a

federal constitutional question.” Id. at 555. Misapplication

of state law is precisely the premise upon which the instant

petitioners are proceeding, and, in addition to the

jurisdictional deficiencies, precisely the reason why the writ

should be denied.

We note, first, that petitioners do not claim that the

provisions of New York’s General Municipal Law

establishing a notice of claim requirement are themselves

unconstitutional, as indeed they could not. This Court has

observed that “the State’s interest in fashioning its own

rules of tort law is paramount to any discernible federal

interest, except perhaps an interest in protecting the

individual citizen from state action that is wholly arbitrary

and irrational.” Martinez v. California, 444 U.S. 277, 282

.

(1980). Cf. Sun Oil Co. v. Wartman, 486 U.S. 717, 730

(1988) (state’s interest in determining when a claim is too

Stale to be adjudicated suffices to give it legislative

jurisdiction to control available judicial remedies by

imposing statutes of limitations); Chase Securities Corp. v.

Donaldson, 325 U.S. 304, 314 (1945) (statutes of limitation

“go to matters of remedy, not to destruction of fundamental

rights”).°

More specifically, New York’s own appellate courts

have upheld the validity of the notice of claim provisions in

the face of due process and equal protection challenges

under both the state and federal constitutions. See, e.g.,

° As interpreted by the New York courts, the requirement

that a notice of claim be filed within 90 days is a condition

precedent to suit. Davi v. B ici ital,

64 NY2d 59, 61, 484 NYS2d 533, 473 NE2d 761 (1984).

The provisions permitting a court, at its discretion, to grant

leave to file a late notice of claim, as long as the extension

does not exceed one year and 90 days (subject to any

applicable statutory tolls), act as a statute of limitations.

Cohen v. Pearl River Union Free School District, 51 NY2d

256, 434 NYS2d 138, 414 NE2d 639 (1980).

2.

Matter of Brown v. Board of Trustees, 303 NY 484, 104

NE2d 866 (1952); MacMullen v. City of Middletown, 187

NY 37, 79 NE 863 (1907). Accord, Umansky v. N.Y.

Met. Transit Authority, 111 AD2d 918, 491 NYS2d 33

(2nd Dept., 1985); Pausley v. Chalmoner, 54 AD2d 131,

388 NYS2d 35 (3rd Dept., 1976), app. dism’d, 41 NY2d

900, 388 NYS2d 35, 362 NE2d 641 (1975), app. denied,

41 NY2d 805, 395 NYS2d 1025, 363 NE2d 718 (1977);

Guarrera_v. A.L. Memorial Hosp., 51 AD2d 867, 380

NYS2d 161 (4th Dept., 1976), app. dism’d, 39 NY2d 942,

386 NYS2d 1029, 352 NE2d 897 (1976 ).

The lower federal courts which have considered the

constitutionality of similar statutory requirements are in

accord. See, e.g., Ornstein v. Regan, 604 F2d 212, 214

(2nd Cir., 1979) (noting, inter alia, that a statute of

limitations is not unconstitutional even if it terminates an

infant’s right to make a claim before he reaches majority

—_.

and can exercise that right); Dinh v. Rust International

Corp., 974 F2d 500, 502 (4th Cir., 1992) (no federal

constitutional right to continued existence of common-law

causes of action); Montegino v. Canale, 792 F2d 554, 558

(Sth Cir., 1986) (in terms of procedural due process rights,

access to the courts may be restricted with regard to a right

which is not fundamental); Douglas v. Stallings, 870 F2d

1242 (7th Cir., 1989) (statute of limitations does not violate

equal protection or, by restricting access to the courts, deny

due process).

The existence of this unanimous body of case law

simply emphasizes that petitioners’ alleged federal claims

reduce to the claim that the New York courts, under the

individual circumstances of this case, misapplied an

otherwise constitutionally valid state law. This fact is

reinforced by the complete absence in the petition of any

citation to federal cases supporting petitioners’ position,

-24-

much less any attempt to show conflict between the

decisions of the New York courts and those of this Court or

other state courts of last resort. See, subsections (b) and (c)

of this Court’s Rule 10.°

Finally, respondents submit that the following

elements of petitioners’ argument lead irresistibiy to the

conclusion, if it has not been reached already, that their

6 Indeed, that this case involves only state law questions is

further underscored by the fact that the only so-called

“conflict” to which petitioners point allegedly emerges

when the determination here is compared with other

decisions of the Appellate Division, Second Department, or

with decisions of the other Appellate Divisions and of New

York State’s highest court. If it exists, that is an issue for

this state’s court of last resort to resolve.

Furthermore, we note in passing that the lack of any

genuine federal question can also be inferred from the fact

that petitioners themselves did not attempt to take an appeal

to the New York State Court of Appeals as of right, on the

ground that a substantial constitutional question was

directly involved, as permitted by CPLR § 5601(b)(1).

Instead, they chose the alternate route of seeking

discretionary review pursuant to CPLR § 5602(a) and (b),

which is only appropriate when an appeal as of right on

constitutional grounds is not available.

-25-

attempt to obtain a writ of certiorari from this Court

borders on the frivolous:

(1) A “separation of powers” argument (Pet. for

Cert. at, e.g., p. 13) based on the federal rather than the

New York State Constitution is obviously untenable:

Article I, section 8 of the former relates solely to allocation

of powers among the branches of the federal government.

(2) Petitioners are attempting to obtain “federal

question” review of a determination of the Appellate

Division, Second Department, yet they devote an entire

point in their brief to the proposition that the Court of

Appeals erred in dismissing, as non-final under the New

York State rather than the federal constitution, that portion

of their motion seeking leave to appeal from the order

upholding denial of the request for iuiaaeleal or renewal

(Pet. for Cert. at pp. 23-24) (see footnote 3, supra).

BNE LS, RN tat, A eee ae Cr totic Pah. ON.

‘ Ven” a dae tmnt Tag ice

sn wer

(3) Petitioners’ assertion of lack of uniformity in

state decisional law, while it emphasizes the non-federal

nature of their claim, is premised on the assumption that

absolute uniformity is possible in situations where courts are

instructed, and given the discretion, to consider “all

relevant circumstances,” in addition to the statutorily-

enumerated criteria (GML § 50-e[5]). Uniformity of this

sort cannot, by definition, be achieved, since those

circumstances vary from case to case; accordingly, the state

appellate courts review such decisions for abuse of

discretion. That no such abuse was found here does not

create a question of federal law reviewable by this Court.

(4) | Under New York law, while the one-year

and 90-day period of GML § 50-e(5) in which a potential

plaintiff may seek leave to file a late notice of claim is

tolled by infancy or disability, this does not, as petitioners

believe, compel the granting of the extension. See Cohen

RB

—

y. Pearl River School District, supra, 51 NY2d at 265. If

it did, the state court’s legislatively-conferred ability to

exercise its discretion would be eliminated. Here, the lower

State court recognized the applicability of the toll by not

simply dismissing petitioners’ motion as untimely. See,

Pierson vy. City of New York, 56 NY2d 950, 453 NYS2d

615, 439 NE2d 331 (1982) (court is without authority to

provide relief from failure to file a notice of claim once the

applicable one-year and 90-day period has expired).’

(5S) As affirmed by the Appellate Division, the

trial court appropriately found that the infancy of certain of

the petitioners did not cause the delay; that the mother’s

asserted psychological infirmity between 1986 and 1988

could not explain why no action was taken between 1988

and 1991, when petitioner’s second motion was made; and

that, while respondents clearly had knowledge from

’ This fact disposes of petitioners’ contention that the state

courts ignored the toll. Pet. for Cert. at p. ii.

-28-

contemporary records that the December 12, 1986 fire had

occurred, those same records not only did not provide

notice that the claims asserted by petitioners might exist,

but flatly contradicted the validity of those very claims.

(6) The assertion that, because the City at one

point sought, unsuccessfully, to obtain custody of the

infants, the failure of the City itself to file a notice of claim

created a conflict of interest and a constitutional violation is

untenable. First, in seeking to protect the children, the City

cannot be held responsible for not pressing a tort claim of

which it had no independent knowledge. Secondly, the

statute itself provides that where an infant is an adjudicated

“ward” of the City, no notice of claim is required. GML

§ 50-e(8). Indeed, in their final state court papers seeking

reargument of the Court of Appeals’ denial of their motion

for leave, petitioners argued that section 50-e(8) dispensed

with the necessity of filing a notice of claim. Only in this

Court has the “conflict of interest” argument emerged as

support for an alleged due-process violation.

In sum, where, as here, no substantial federal

question is presented and the core issue involves the

application of local law by the state courts, this Court

should decline to undertake further review. Black v. Cutter

Laboratories, 351 U.S. 292, 299-300 (1956).

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED.

Respectfully submitted,

PAUL A. CROTTY

Corporation Counsel of the

City of New York

Attorney for Respondents

LEONARD J. KOERNER, *

STEPHEN J. McGRATH,

KRISTIN M. HELMERS,

of Counsel.

* Attorney of Record

-30-

APPENDIX:

APPLICABLE STATE STATUTES

-3]-

General Municipal Law § 50-e. Notice of Claim.

1. When service required; time for

service; upon whom service required.

(a) In any case founded upon tort

where a notice of claim is required by law

as a condition precedent to the

commencement of an action or special

proceeding against a public corporation, as

defined in the general construction law, or

any officer, appointee or employee thereof,

the notice of claim shall comply with and be

served in accordance with the provisions of

this section within ninety days after the

claim arises; except that in wrongful death

actions, the ninety days shall run from the

appointment of a representative of the

decedent’s estate.

5. Application for leave to serve a

late notice.

Upon application, the court, in its

discretion, may extend the time to serve a

notice of claim specified in paragraph (a) of

subdivision one. The extension shall not

exceed the time limited for the

commencement of an action by the claimant

against the public corporation. In

determining whether to grant the extension,

the court shall consider, in particular,

whether the public corporation or its

-32-

PO LCA LE ATS

attorney or its insurance carrier acquired

actual knowledge of the essential facts

constituting the claim within the time

specified in subdivision one or within a

reasonable time thereafter. The court shall

also consider all other relevant facts and

circumstances, including: | whether the

claimant was an infant, or mentally or

physically incapacitated, or died before the

time limited for service of the notice of

claim; whether the claimant failed to serve

a timely notice of claim by reason of his

justifiable reliance upon _ settlement

representations made by an authorized

representative of the public corporation or

its insurance carrier; whether the claimant in

serving a notice of claim made an excusable

error concerning the identity of the public

corporation against which the claim should

be asserted; and whether the delay in

serving the notice of claim substantially

prejudiced the public corporation in

maintaining its defense on the merits.

An application for leave to serve a

late notice shall not be denied on the ground

that it was made after commencement of an

action against the public corporation.

29.

General Municipal Law § 50-i. Presentation of Tort

Claims; Commencement of Actions.

No action or special proceeding shail

be prosecuted or maintained against a city,

county, town, village, fire district or school

district for personal injury, wrongful death or

damage to real or personal property alleged

to have been sustained by reason of the

negligence or wrongful act of such city,

county, town, village, fire district or school

district or of any officer, agent or employee

thereof, including volunteer firemen of any

such city, county, town, village, fire district

or school district or any volunteer fireman

whose services have been accepted pursuant

to the provisions of section two hundred

nine-i of this chapter, unless, (a) a notice of

claim shall have been made and served upon

the city, county, town, village, fire district or

school district in compliance with section

fifty-e of this chapter, (b) it shall appear by

and as an allegation in the complaint or

moving papers, that at least thirty days have

elapsed since the service of such notice and

that adjustment or payment thereof has been

neglected or refused, and (c) the action or

special proceeding shall be commenced

within one year and ninety days after the

happening of the event upon which the claim

is based; except that wrongful death actions

shall be commenced within two years after

the happening of the event upon which the

claim is based; except that wrongful death

-34-

. actions shall be commenced within two years

. after the happening of the death.

2. This section shall be applicable

notwithstanding any inconsistent provisions

of law, general, special or local, or any

limitation contained in the provisions of any

city charter.

i a

Nothing contained herein or in section

fifty-h of this chapter shall operate to extend

the period limited by subdivision one of this

section for the commencement of an action

or special proceeding.

Civil Practice Law and Rules § 208. Infancy, Insanity.

If a person entitled to commence an

action is under a disability because of infancy

or insanity at the time the cause of action

accrues, and the time otherwise limited for

commencing the action is three years after

the disability ceases, or the person under the

disability dies, the time within which the

action must be commenced shall be extended

to three years after the disability ceases or

the person under the disability dies,

whichever event first occurs; if the time

otherwise limited is less than three years, the

time shall be extended by the period of

disability. The time within which the action

must be commenced shall not be extended by

this provision beyond the years after the

cause of action accrues, except, in any action

24.

other than for medical, dental or podiatric

malpractice, where the person was under a

disability due to infancy. This section shall

not apply to an action to recover a penalty or

forfeiture, or against a sheriff or other officer

for an escape.

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