Schorr v. New York City Housing Authority

Dore, J. Plaintiff, a tenant in the multiple dwelling owned and operated by defendant, was injured on August 30, 1943, when pieces of plaster from the ceiling in the bedroom of his apartment fell on him. After a trial before the court and jury in the City Court, judgment for $1,094.45 was entered in plaintiff’s favor and has been unanimously affirmed by the Appellate Term. On appeal, by leave of this court, defendant concedes plaintiff’s proof of defendant’s negligence, his own freedom from contributory negligence and damages sufficient to sustain the verdict in his behalf. The sole issue raised is the sufficiency of the. notice of claim served on defendant pursuant to the requirements of section 157 of the Public Housing Law. So far as relevant, that section requires (subd. 2) “ a verified statement showing in detail * * * the injuries alleged to have been received * * Defendant contends that plaintiff’s notice was not “ verified ” and that it failed to show “ in detail ” the injuries received. The written notice and statement duly filed by plaintiff was signed by him and sworn to before a notary public. We think it fulfilled the requirement of section 157 that a “ verified statement ” be made. This aspect of the case is governed by Matter of Levine (Town of Fallsburgh) (287 N. Y. 243). In that case the statute required a “ verified ” claim and the Court of Appeals held that a conventional affidavit of verification in the form prescribed for pleadings by rules 99 and 100 of the Rules [341] of Civil Practice was not required but an affidavit signed and sworn to by the claimant fully answered the statutory requirement. Ponsrok v. City of Yonkers (254 N. Y. 91) is not in point as, there, the affidavit was not signed by the claimant. Here, the notice of claim is signed and sworn to before a notary. Thomann v. City of Rochester (256 N. Y. 165,175) is not controlling. In that case the notice of claim was not filed' until nearly four years after the inception of the nuisance complained of and the case was considered upon the assumption that the claim failed “ because of the delay in the service of the statutory notice.” Defendant further claims that the notice was fatally defective in that plaintiff failed to set forth “ in detail” the injuries received. The claim states that plaintiff was struck by pieces of plaster falling from the ceiling and as a result sustained severe and permanent injuries to the plaintiff’s “ limbs and body.” The evidence at the trial established that plaintiff had a fracture of the right big toe. We think the notice is in substantial compliance with the statute. The object of the notice is to give the city authorities time to investigate and, if the claim is good, to pay without suit. (Kamnitzer v. City of New York, 265 App. Div. 636, 639.) The information given was sufficient as -a statement of claim to enable the city to investigate and nothing more was required. (Rivero v. City of New York, 290 N. Y. 204, 208.) In Place v. City of Yonkers (43 App. Div. 380) the notice of claim was “ severe and permanent injury to my head and body.” The injury proved was an injury to the eye. The court held the notice sufficient. That the injuries need not be set forth in the notice with the same definiteness as in a bill of particulars, is indicated by the fact that the statute gives defendant the right to examine the claimant under oath (Public Housing Law, § 157, subd. 3) and a bill of particulars may be required. In this case defendant obtained a complete statement of the injuries in a verified bill of particulars and had the claimant examined by its own doctor after the notice of claim was filed. Lautman v. City of New York (157 App. Div. 219) is not decisive of this case. There, the plaintiff sued the city to recover for damage to plaintiff’s goods by the overflow of defendant’s sewer and the notice merely described the property injured as “ merchandise.” Cases involving property damage differ from personal injury cases where the defendant can obtain a physical [342] examination. - It is not always possible to inspect property claimed to have been damaged or destroyed. Here, defendant makes no claim of prejudice and indeed can establish none. The claim has been justly determined on the merits and plaintiff should not be put out of court by merely technical objections to the form of the notice and statement of claim. The Court of Appeals said in Ciark v. Kirby (243 N. Y. 295, 303): “ All procedure is merely a methodical means whereby the court reaches out to restore rights and remedy wrongs; it must never become more important than the purpose which it seeks to accomplish. Unless some-necessary requirement has been omitted, a wrong move or a mistake in the method of seeking relief from the courts ought not to furnish protection for a wrongful act.” The determination of the Appellate Term and the judgment of the City Court should be affirmed, with costs and disbursements to respondent.