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BLOOM v. NEW YORK CITY BOARD OF EDUCATION

United States District Court, S.D. New York


March 19, 2004.

RITA BLOOM, Plaintiff; -against- NEW YORK CITY BOARD OF EDUCATION, TEACHERS' RETIREMENT SYSTEM OF THE CITY OF NEW YORK, AND NEW YORK CITY, Defendants

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

OPINION AND ORDER
I. Introduction
Plaintiff commenced this civil rights action against the New York City Board of Education (the "Board"), the Teachers' Retirement System of the City of New York (the "TRS"), and the City of New York (the "City") (collectively, the "Defendants"), asserting claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. § 791 et seq., the Public Health Services Act, 42 U.S.C. § 300bb et seq., the anti — discrimination provisions of New York's Executive Law §§ 296 et seq. and the New York City Administrative Code §§ 8-101 et seq., and for breach of contract. Plaintiff moves for an Order pursuant to New York Education Law § 3813 granting her leave to file a late notice of claim, or to estop Defendants from Page 2 asserting as a defense plaintiff's failure to file a notice of claim. The parties have consented to my exercising plenary jurisdiction in this matter pursuant to 28 U.S.C. § 636(c).

For the reasons set forth below, plaintiff's motion is granted.

 II. Facts

  A. Background

  Plaintiff was hired by the Board as a teacher in 1967 and began working as a guidance counselor in 1970 (Affidavit of Rita Bloom, sworn to June 3, 2003 ("Bloom. Aff."), ¶ 3). In 1990, plaintiff became ill after she was exposed to toxic fumes from renovation work taking place at the school to which she was assigned (Bloom Aff. ¶ 3). Specifically, plaintiff developed an airway disease that affects her breathing and respiratory functions (Bloom Aff. ¶ 3). To continue working, plaintiff required a well — ventilated work environment (Bloom Aff. ¶ 3).

  Pursuant to its by — laws and a collective bargaining agreement ("CBA") with the United Teacher's Federation, the Board provides line — of — duty injury pay to teachers with disabilities caused by a condition at work. Line — of — duty benefits are payable until the disability can be reasonably accommodated (Bloom Aff. ¶¶ 4-5). Under the by — laws, the Board's Medical Bureau, whose Director is Dr. Jacobson, determines whether a disability is Page 3 caused by a condition at work (Bloom Aff. ¶ 5). Under the CBA, this determination must be made by a medical arbitrator, whose decision is "final and binding."*fn1 (Bloom Aff. `¶ 5).

  In 1991, plaintiff submitted "several inquiries, requests and demands" for the Board to abide by its by — laws and the CBA and provide her with either line — of — duty injury pay or a reasonable accommodation for her disability (Bloom Aff. ¶ 7). Plaintiff alleges that the Board "unreasonably delay [ed]" in deciding plaintiff's claims and cites the following evidence in support of this contention (Bloom Aff. ¶ 7).

  On November 22, 1991, plaintiff's counsel, Wayne N. Outten, Esq., sent a letter to the Board demanding that the Board accommodate plaintiff's disability with a properly ventilated work place or provide her with line — of — duty injury pay (Letter of Wayne N. Outten, Esq., to the Board ("Outten Ltr."), at 4-5, annexed as Ex. E to Bloom Aff.). In addition, on January 3, 1992 and January 23, 1992, plaintiff sent letters to Dr. Jacobson (Bloom Aff. ¶ 8; Plaintiff's Letter to Dr. Jacobson, dated January 3, 1992 ("Pl.'s 1/3/92 Ltr."), annexed as Ex. F to Bloom Aff.; Plaintiff's Letter to Dr. Jacobson, dated January 23, 1992 ("Pl.'s 1/23/92 Ltr."), annexed as Ex. F to Bloom Aff.). In these letters plaintiff advised that Dr. Jacobson, after examin — Page 4 ing plaintiff, failed to determine whether plaintiff was fit for service or entitled to line — of — duty pay (Pl.'s 1/3/92 Ltr. at 1; Pl.'s 1/23/92 Ltr. at 2-3). Plaintiff asserted that Dr. Jacobson was contractually obliged to make a determination within 10 days of examination, and that her failure to do so was a violation of plaintiff's rights under the New York State and New York City Human Rights Laws, New York State Civil Rights Law and Federal Law because it perpetuated the discrimination that she was being subjected to as the result of her disability (Pl.'s 1/3/92 Ltr. at 1).

  On September 30, 1992, the Board's Chancellor issued an order stating that plaintiff's injury was "sufficient to satisfy the criteria under [the by — laws] that an injury in the line of duty be the result of an accident or incident which could not be avoided with ordinary care or was the result of an untoward incident, extraordinary circumstance or dangerous condition." (Bloom Aff. ¶ 6). Plaintiff was awarded line — of — duty injury pay for work that she had missed through June 1992 (Bloom Aff. ¶ 6). In an effort to accommodate plaintiff's disability, this order also directed that plaintiff be assigned to a new school (Bloom Aff. ¶ 9). Twenty days after issuance of this order, however, the Board's Medical Arbitrator, Dr. Daum, concluded that plaintiff was not fit to work at that time (Bloom Aff. ¶ 9). Dr. Daum had been appointed Medical Arbitrator by Dr. Jacobson and as — Page 5 signed all decision — making authority (Bloom Aff. ¶ 9). Dr. Daum did, however, agree that plaintiff's illness was the result of an injury incurred in the line of duty (Bloom Aff. ¶ 9). Pursuant to Dr. Daum's findings, plaintiff ceased working (Bloom Aff. ¶ 9).

  The Board never rejected plaintiff's line — of — duty injury status and never rejected Dr. Daum's finding that plaintiff was not fit to work (Bloom Aff. ¶ 10). The Board maintained plaintiff on active employment status and active pay status (Bloom Aff. ¶ 10). As each paycheck to plaintiff was issued, however, it was canceled, and plaintiff never actually received any paychecks (Bloom Aff. ¶ 10). Plaintiff continued to receive credit for pension service, pay raises and medical insurance (Bloom Aff. ¶ 10). Plaintiff believed that her "benefits of employment" "continued to accrue" and that the Board would find her an appropriate position (Bloom Aff. ¶¶ 2, 10).

  In 1994, plaintiff was informed by her insurance carriers that the Board had placed her on unpaid leave of absence (Bloom Aff. ¶ 11). Plaintiff immediately called the school district where she was employed and spoke to Lorraine Smith, the Personnel Director (Bloom Aff. ¶ 11). Smith allegedly informed plaintiff that she was entitled to line — of — duty injury pay until a work accommodation for her disability could be made (Bloom Aff. ¶ 11). Smith also allegedly said that the Board could not place Page 6 plaintiff on a leave of absence unless she was paid (Bloom Aff. ¶ 11). According to plaintiff, however, Smith subsequently failed to return plaintiff's "follow — up telephone calls" (Bloom Aff. ¶ 11). Plaintiff later learned, on an unspecified date, that she had been retroactively returned to active pay status, and payroll records reveal uninterrupted active payroll and employment status*fn2 (Bloom Aff. ¶ 11).

  In 1995, unbeknownst to plaintiff, Elizabeth Gill, an employee in the Board's Office of the Chancellor, issued a memorandum to Thomas P. Ryan, Executive Director, and David Bass, Deputy Executive Director concerning rescheduling an arbitration for plaintiff's claim for line — of — duty pay (Ex. K to Bloom. Aff.). The memorandum states "This is an injury in the line of duty matter. Employer Board of Education's potential liability is great. . . . Ms. Bloom is claiming time back to 1991." (Ex. K to Bloom Aff.). The memorandum concludes by stating, "This case, if let to linger, will surely impair the employer's ability to put in either a defense to Ms. Bloom's claim or negotiate a reasonable settlement" (Ex. K to Bloom Aff.).

  On December 10, 1997, the Board informed plaintiff that her employment had been terminated (Bloom Aff. ¶ 13). After the Board informed plaintiff that she had been terminated, however, Page 7 it told her that she "had to request a leave without pay or return to service by September 1999, or face termination of employment" (Bloom Aff. ¶ 14). As a result of these conflicting communications, plaintiff claims that she was "absolutely uncertain about [her] employment status" (Bloom Aff. ¶ 14). Plaintiff's counsel immediately responded with a letter stating that plaintiff "wanted to return to work but that [she] needed an accommodation for [her] continued employment" (Bloom Aff. ¶ 14). In 2000, after commencement of the instant action, the Honorable Harold Baer, United States District Judge, ordered that Defendants explore the possibility of providing plaintiff with a position as a guidance counselor; no position was ever offered to plaintiff (Bloom Aff. ¶ 17). In response to this lawsuit, Defendants have still not unequivocally stated whether plaintiff was ever terminated, and her employment status remains unclear (Bloom Aff. ¶ 16).

  B. Procedural History

  Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") on October 6, 1998, within three — hundred days of December 10, 1997, the date she was informed of her putative termination. The EEOC issued plaintiff a Notice of Right to Sue letter on January 6, 2000. Plaintiff commenced this action on April 6, 2000 with the Page 8 filing of her initial complaint. Plaintiff subsequently filed an amended complaint on July 27, 2000.

  Plaintiff's second amended complaint, filed on May 7, 2002, asserts nine claims: (1) employment discrimination and retaliation in violation of Title I of the Americans with Disabilities Act ("ADA") by the Board; (2) employment discrimination under the Rehabilitation Act by the Board; (3) employment discrimination under the Rehabilitation Act by the TRS and the New York City Employee Benefits Program ("NYCEBP"); (4) discrimination in violation of Title II of the ADA by all defendants; (5) violation of the Public Health Services Act ("PHSA") by the NYCEBP; (6) discrimination in violation of New York Executive Law Sections 292(5) and 296 by the Board; (7) discrimination in violation of Section 8-107 of the Administrative Code of the City of New York by the Board; (8) retaliation for her complaints of discrimination in violation of the ADA, the Rehabilitation Act, the New York Executive Law, and Title 8 of the Administrative Code of the City of New York by all defendants, and (9) breach of contract based on (a) the Board's failure to abide by the medical arbitrator's determination, failure to provide line — of — injury duty pay, and failure to follow procedures for termination; (b) the NYCEBP's wrongful termination of plaintiff's health coverage, and (c) the TRS's wrongful discontinuance of plaintiff's pension Page 9 credits and unilateral modification of the terms of a loan taken out by plaintiff.

  On July 12, 2002, Defendants moved to dismiss the second amended complaint on the following five grounds: (1) plaintiff's claims pursuant to Titles I and II of the ADA, the Rehabilitation Act, New York Executive Law Sections 292(5) and 296, and Section 8-107 of the Administrative Code of the City of York were untimely; (2) Title II of the ADA does not provide a right of action for employment discrimination; (3) plaintiff's retaliation claim fails to state a claim because the Defendants have not treated plaintiff differently since she filed her charge of discrimination or commenced this action; (4) plaintiff's failure to file a notice of claim pursuant to New York Education Law Section 3813 bars her claims under the New York State and New York City Human Rights Laws and her breach of contract claim, and (5) plaintiff's claim alleging violations of the PHSA fails to set forth an injury — in — fact (Defendants' Memorandum of Law in Support of Their Motion to Dismiss the Second Amended and Supplemental Complaint, dated July 11, 2002 ("Defs.' Mem."), at 2).

  On March 31, 2003, I granted Defendants' motion to dismiss with respect to plaintiff's claims against the Board for violations of New York Executive Law Sections 292(5) and 296, Section 8-107 of the Administrative Code of the City of New York, and for breach of contract, without prejudice to plaintiff's Page 10 moving for leave to file a late notice of claim against the Board. Defendants' motion was denied in all other respects. I rejected Defendants' untimeliness argument because plaintiff had alleged a continuing violation, and since it was 12(b)(6) motion, I accepted plaintiff's factual allegations as true and stated that it would be premature to dismiss the claims as untimely at that point in time. In rejecting Defendants' untimeliness argument, however, I expressly noted that I was not ruling that plaintiff had shown that the claims were timely.

  III. Analysis

  A. Timeliness

  Defendants argue that plaintiff's motion to file a late notice of claim is untimely (Defs.' Mem. at 4-10). Defendants rely on New York Education Law Section 3813(2-a) which states that although a court, in its discretion, may extend the time to serve a notice of claim, "[t]he extension shall not exceed the time limited for the commencement of an action by the claimant against any district or such school" (Defs.' Mem. at 4). Defendants assert that plaintiff's claims for failure to make line — of — duty payments and failure to accommodate her disability are now time — barred and, thus, the Court lacks jurisdiction to grant an extension. Plaintiff disputes the dates on which the claims accrued and what the applicable statute of limitations periods Page 11 are (Plaintiff Reply Memorandum of Law, dated August 11, 2003 ("Defs.' Reply Mem."), at. 3-9). The resolution of these disputes, however, is unnecessary for purposes of this motion.

  Since Section 3813(2-a) prohibits a court from extending the time to file a notice of claim beyond the limitations period applicable to the underlying claim, the first step is to determine whether the underlying claim could still be timely commenced. In addition, since Section 3813(2-a) does not prohibit or even suggest that tolls and extensions should not be considered in determining whether the underlying claim is still timely, such tolls and extensions must be considered in determining whether the underlying claim could still be timely asserted.

  Section 205(a) of the New York Civil Practice Law and Rules ("CPLR") provides:

If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action,` or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant zis effected within such six — month period.
Thus, if plaintiff's non — federal claims were dismissed for failure to file a Notice of Claim in timely manner, Section Page 12 205 would give plaintiff an additional six months to file a new action. Although Section 205(a) applies only to claims that are "timely filed," failure to file a timely notice of claim does not render the action untimely, rather it constitutes the non — occurrence of a condition precedent to suit. See Cavanaugh v. Board of Educ., 296 A.D.2d 369, 369, 745 N.Y.S.2d 433, 434 (2d Dep't 2002) ("the timely filing of a notice of claim is a condition precedent to suit"), citing Educ. L. § 3813(1) and Mills v. County of Monroe, 59 N.Y.2d 307, 464 N.Y.S.2d 709, 451 N.E.2d 456 (1983); see also Sangermano v. Board of Coop. Educ. Servs., 290 A.D.2d 498, 736 N.Y.S.2d 258 (2d Dep't 2002) ("filing of a notice of claim is a condition precedent to suit"). Section 205 unquestionably applies to actions that are defectively commenced due to the non — occurrence of a condition precedent.

 

[T]he absence of a condition precedent requires dismissal of a particular case notwithstanding that the court has jurisdiction of the subject matter. . . . The omission of such a condition does not necessarily bar the claim entirely. If . . . CPLR 205 operates because of the defectively commenced action to extend the time limit, the omission can be supplied and the action or a new action replacing it will be decided on the merits.
Copeland v. Salomon, 56 N.Y.2d 222, 227, 436 N.E.2d 1284, 1287-1288, 451 N.Y.S.2d 682, 685-686 (1982) (citations omitted). See also Fleming v. Long Island R.R., 72 N.Y.2d 998, 1000, 534 N.Y.S.2d 371, 372, 530 N.E.2d 1291, 1292 (1988) ("A dismissal for Page 13 failure to plead compliance with the condition precedent . . . is not a dismissal based on a jurisdictional defect such as would preclude application of the provisions of CPLR 205(a)."); Kretschmann v. Board of Educ., 294 A.D.2d 39, 40, 744 N.Y.S.2d 106, 107 (4th Dep't 2002) ("a second action may be deemed timely commenced pursuant to CPLR 205(a) despite the dismissal of the first action based on plaintiff's initial failure to serve the notice of claim. . . .").

  Thus, plaintiff's failure to file a notice of claim does not bar the application of Section 205 and there is no absolute limitations bar to plaintiff's claims. Since plaintiff's claims could still be timely asserted, Section 3813(2-a)'s absolute bar against extending the time to file a notice of claim beyond the time in which the claim could be asserted is not applicable here.

  B. Factors Considered in a Motion for Leave to File a Late Notice of Claim

  Section 3813(2-a) of the New York Educational Law grants substantial discretion in deciding whether to permit the late filing of a notice of claim. It provides:

  In determining whether to grant the extension, the court shall consider, in particular, whether the district or school or its attorney or its insurance carrier or other agent acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one of this Page 14 section or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether . . . the delay in serving the notice of claim substantially prejudiced the district or school in maintaining its defense on the merits.

  See also Linder v. City of New York, 263 F. Supp.2d 585, 595 (E.D.N.Y. 2003) ("[Section 3813] provides that, in determining whether to grant an extension, the court is to consider, `in particular,' whether the defendant had actual notice of the essential facts constituting the claim within the 90 — day window `or within a reasonable time thereafter.'"); EUA Cogenex Corp, v. North Rockland Cent. Sch. Dist., 124 F. Supp.2d 861, 864 (S.D.N.Y. 2000) ("This Court is empowered to grant leave to file a late notice of claim by Education Law § 3813(2-a)."); Palka v. Union Endicott Cent. Sch. Dist., 2 A.D.3d 1174, —, 770 N.Y.S.2d 178, 179-80 (3d Dep't 2003) (Among the factors the court should consider in determining whether to allow leave to file a late notice of claim under 3813 (2-a) are "`whether the applicable district had prompt notice of the claim and an opportunity to investigate it or if such district was substantially prejudiced in maintaining a defense on the merits.'" (citations omitted)); Johnson v. Katonah — Lewisboro Sch. Dist., 285 A.D.2d 490, 490, 727 N.Y.S.2d 171, 171 (2d Dep't 2001) (Section 3813(2-a) confers discretion upon court to allow filing of late notice of claim.). Page 15

  New York State courts have consistently allowed filing late notice of claims where defendants have had actual knowledge of the facts constituting plaintiffs' claims within three months of accrual of the claim, or a reasonable time thereafter, and there was no evidence of prejudice to defendant. See SER Roofing, Inc. v. Richfield Springs Cent. Sch. Dist., 303 A.D.2d 886, 887, 757 N.Y.S.2d 129, 131 (3d Dep't 2003) (allowing late notice of claim to be filed by contractor for breach because "respondents were aware of the essential facts underlying the claim and respondents make no showing of prejudice."); Bader v. Board of Educ., 216 A.D.2d 708, 708-09, 627 N.Y.S.2d 858, 859 (3d Dep't 1995) ("[S]ince respondent was aware of petitioner's claims due to a prior unemployment compensation case involving the same parties and similar issues, and since we do not find that any prejudice has inured to respondent by the attempt to file the late notice of claim, we grant petitioner's application pursuant to Education Law § 3813(2-a). "); Bri — Den Const. Co., Inc. v. Board of Educ., 200 A.D.2d 605, 606, 606 N.Y.S.2d 717, 718 (2d Dep't 1994) (allowing plaintiff to file late notice of claim in breach of contract action because "defendant had actual knowledge of the essential facts constituting the claim. . . . and the delay did not prejudice the defendant"); Ambrosano v. Canajoharie Cent. Sch. Dist., 174 A.D.2d 914, 915, 571 N.Y.S.2d 612, 613 (3d Dep't 1991) (Allowing late notice of claim to be. filed because Page 16 school superintendent saw petitioner injure himself while playing basketball on school grounds and there was no evidence of prejudice.); Gordon Dana Madris Realty, Inc. v. Eastchester Union Free Sch. Dist., 125 A.D.2d 541, 542, 509 N.Y.S.2d 619, 620 (2d Dep't 1986) (two letters sent by plaintiff to person sitting on board of education constituted actual notice of plaintiff's claims, and when considered in conjunction with lack of prejudice, a late notice of claim was properly permitted).

  Here, plaintiff argues that (1) Defendants had actual notice of her claims and (2) Defendants would not be prejudiced by a late notice of claim (Plaintiff's Memorandum of Law, dated June 3, 2003 ("Pl.'s Mem."), at 5-9). Defendants do not controvert either of these contentions.*fn3 I find there to be sufficient evidence in the record to substantiate plaintiff's argument and to warrant granting leave to file a late notice of claim.

  The strongest evidence that Defendants had actual notice of plaintiff's claims is the March 22, 1995 memorandum from Elizabeth Gill, an employee in the Board's Office of the Chancellor, to Thomas P. Ryan, Executive Director, and David Page 17 Bass, Deputy Executive Director (Ex. K to Bloom. Aff.). The memorandum concerned rescheduling the arbitration of plaintiff's claim for line — of — duty pay. The memorandum states "This is an injury in the line of duty matter. Employer Board of Education's potential liability is great. . . . Ms. Bloom is claiming time back to 1991." (Ex. K to Bloom Aff.). The memorandum concludes by stating, "This case, if let to linger, will surely impair the employer's ability to put in either a defense to Ms. Bloom's claim or negotiate a reasonable settlement" (Ex. K to Bloom Aff.). This document conclusively shows that the Board had actual notice of plaintiff's claims as early as March 1995.

  Furthermore, there is additional evidence, dating back to 1991, indicating that Defendants had actual notice of plaintiff's claims. The fact that the Board made a medical determination that plaintiff qualified for line — of — duty pay and attempted to accommodate her by placing her in a new school is evidence that the Board was aware of the facts underlying plaintiff's claims. The Board subsequently canceled all checks issued to plaintiff and did not explore further potential accommodations. The Board cannot claim that it was not aware of its own actions. Concrete evidence of the Board's knowledge is established through numerous letters between plaintiff and Defendants regarding plaintiff's claim for either an accommodation or line — of — duty injury pay. Page 18

  For example, in November 1991, plaintiff's counsel sent a letter to the Board, complaining that plaintiff, after becoming ill, was subjected to "bureaucratic harassment and/or inertia" (Bloom Aff. ¶ 7; Outten Ltr at 1-2). Specifically, counsel stated that Defendants initially ignored plaintiff's line — of — duty injury claim in early 1991; unreasonably delayed in issuing a determination after a medical examination by Dr. Jacobson concerning plaintiff's claim of a line — of — duty injury, and attempted to place plaintiff in schools which did not properly accommodate her disability (Outten Ltr. at 2-4.). Plaintiff's counsel concluded by demanding that the Board place plaintiff in a school which accommodated her disability and award her line — of — duty pay for previously missed days of work (Bloom Aff. ¶ 7; Outten Ltr at 4-5.).

  Plaintiff also sent letters dated January 3, 1992 and January 23, 1992 to Dr. Jacobson, the Director of the Board's Medical Bureau (Bloom Aff. ¶ 8; Pl.'s l/3/92 Ltr.; Pl's 1/23/92 Ltr.). In these letters plaintiff alleged that Dr. Jacobson had failed to make a determination concerning whether plaintiff was fit for service or entitled to line — of — duty pay (Pl.'s l/3/92 Ltr. at l; Pl.'s 1/23/92 Ltr. at 2-3). Plaintiff asserted that Dr. Jacobson was contractually obligated to provide such a determination within 10 days of examination, and her failure to do so violated plaintiff's rights under the New York State and Page 19 New York City Human Rights Laws, New York State Civil Rights Law and Federal Law because it perpetuated the discrimination that she was being subjected to as the result of her disability (Pl.'s l/3/92 Ltr. at l). The issues raised in these letters are the same issues which plaintiff presents here and further establishes that the Board had actual notice of plaintiff's claims.

  These facts sufficiently establish that since as early as 1991 Defendants have had actual notice of plaintiff's claims that Defendants have failed to accommodate plaintiff with an adequate working environment and failed to provide her with line — of — duty pay to which she was entitled. Given the record here; the notion that Defendants were unfamiliar with the facts underlying plaintiff's claims is absurd.

  Plaintiff also argues that Defendants would not be prejudiced by a late notice of claim because (1) "virtually no discovery of any kind [has] occurred" and (2) Defendants have not yet answered the Second Amended and Supplemental Complaint (Pl.'s Mem. at 4). Defendants make no argument, nor is there any evidence in the record, that they would be prejudiced if plaintiff's motion for leave to file a late notice of claim were granted.

  Accordingly, in light of the Defendants' actual notice of the facts underlying plaintiff's claims, and the absence of Page 20 any prejudice to Defendants, I conclude that plaintiff's motion for leave to file a late notice of claim should be granted.

  IV. Conclusion

  Accordingly, for all the foregoing reasons, plaintiff's motion for leave to file a late notice of claim is granted. Plaintiff may file a late notice of claim no later than April 19, 2004.

  SO ORDERED


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