The plaintiff was injured in a city park and sued the City of New York. The document argues that: 1) The City controls the park and is therefore not an out-of-possession landlord insulated from liability. The City also affirmatively created the risk by allowing a public event. 2) The City should be estopped from arguing it is not the proper defendant because it misled the plaintiff about being the responsible party. 3) The Department of Education, which the City argues is the proper defendant, had actual notice of the claim and is united in interest with the City, so the plaintiff should be allowed to amend the complaint and notice of claim to include the Department of Education.

1. ARGUMENT
THE CITY HAS CONTROL OF THE PARK AND
AFFIRMATIVELY CREATED THE RISK TO THE PLAINTIFF
1. Pursuant to 56 RCNY §1-01 – §1-08, defendant City is not an out-of-possession
landlord and is not insulated from liability for injuries occurring on its property because the City
controls access and regulates the use of the park. This Court holds in Seney v. Kee Assocs., 15
A.D.3d 383, 384 (N.Y. App. Div. 2d Dep't 2005) that “An out-of-possession landlord is not liable
for injuries sustained on the premises unless the landlord retains control of the premises or is
contractually obligated to perform maintenance and repairs”. See also Taylor v. Lastres, 45
A.D.3d 835 (N.Y. App. Div. 2d Dep't 2007) (“Control may be evidenced by lease provisions
making the landlord responsible for repairs or by a course of conduct demonstrating that the
landlord has assumed responsibility to maintain a particular portion of the premises.”).
Here, at a minimum, the City and the School shared day-to-day control and use of the park.
Thus, the City is not an out of possession landlord and is not insulated from liability.
2. Moreover, assuming arguendo that the City is an out-of-possession landlord the
City is still liable. This Court holds, in a case where a woman was injured when her heel got caught
in a hole on school property grounds, that
the City, as the owner of the premises, had a status equivalent to an
out-of-possession landlord, and therefore still could be held liable
for injuries caused by a dangerous condition which it affirmatively
created.”…“the record in this case contains sufficient evidence from
which rational jurors could infer…that the City created the
dangerous condition.

2. Bleiberg v. City of New York, 43 A.D.3d 969, 971 (N.Y. App. Div. 2d Dep't 2007). See also
Lombardo v Temple Beth-El of Rockaway Park, 31 Misc. 3d 1219A (N.Y. Sup. Ct. 2011)(“
Nevertheless, the City may be held liable for a dangerous condition on school property which it
affirmatively created”…”The City has failed to even allege that they did not affirmatively create
the condition alleged to have caused plaintiff's injuries and, as such, their motion to dismiss
plaintiffs' complaint in its entirety must be denied.”).
Here the record is clear that the City was aware that the park was open to the public and
allowed the event held by the Department of Education in the park even though the City knew that
the event could easily pose a risk to infants like the plaintiff. Moreover, the City has never denied
that they did not affirmatively create the risk. Thus, the city is liable for the plaintiff’s injury even
if the City is an out-of-possession landlord.
THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED
BECAUSE THE PLAINTIFFS WERE ESTOPPED BY THE CITY FROM AMENDING
THEIR NOTICE OF CLAIM
3. Defendant’s central argument is that the plaintiffs’ notice of claim and complaint
improperly named the City of New York as the defendant. However, when the City responded to
the notice of claim and complaint it never indicated that it was not the properly named defendant.
Furthermore, from the time of the plaintiffs’ claim in January of 2002 until the present motion the
City continued to misrepresent itself to the plaintiffs as the appropriately named defendant. The
plaintiff’s did not amend the notice of claim to name the Board of Education within the statutory
timeframe because of the City’s misrepresentation. Therefore, pursuant to the doctrine of equitable
estoppel, the City should be barred from denying that it is the proper defendant.

3. 4. Here, the defendant’s misrepresentation was more egregious because of the
confusion that existed when the notice of claim was issued. After Mayor Bloomberg’s election in
2001, on a platform of taking over the control of the public school system, the Court noted that
“There followed a period of particular confusion about notice of claim procedure”. Padilla v
Department of Educ. of the City of New York, 90 A.D.3d 458 (N.Y. App. Div. 1st Dep't 2011).
Thus, the defendant’s failure to notify the plaintiff that the Board of Education was the proper
defendant was compounded by the prevailing environment of uncertainty of who was or would be
in control of the public school system.
5. In Padilla, a very similar case, where the plaintiff notice of claim named New York
City for a personal injury that occurred on public school property, the Court holds that:
In 2006 it was reasonable for plaintiff to name the City as the only
defendant in her initial notice of claim timely filed with Corporation
Counsel. It was also reasonable for her to rely on defendants' answer
to the complaint for the belief that she had served the proper party.
While their conduct may not have risen to the level of fraud,
defendants "comport[ed] [themselves] wrongfully or negligently,
inducing reliance by [plaintiff]" and discouraging her from serving
a timely amended notice of claim; they are therefore estopped from
challenging her initial notice of claim.
Id at 3. See also Agress v. Clarkstown Cent. Sch. Dist., 69 A.D.3d 769, 771 (N.Y. App. Div. 2d
Dep't 2010); Zaiman v. Metropolitan Transit Authority, 186 A.D.2d 555 (N.Y. App. Div. 2d Dep't
1992; Inner Force Economic Dev. Corp. v Department of Educ. of the City of New York, 36 Misc.
3d 758, 761 at 6 (N.Y. Sup. Ct. 2012) (“Here, while there was no intent to deliberately mislead
the Plaintiff, the Comptroller's response to the claim, wrongfully or negligently, induced reliance
by the Plaintiff, to its detriment to believe that its Notice of Claim was proper and that the proper
party had been served. Accordingly, DOE is estopped from asserting the Notice of Claim
defense.”).

4. 6. Since the plaintiffs reasonably relied on the defendant’s misrepresentations, and
therefore did not make a timely amendment to their notice of claim, defendant City should be
barred from now claiming the wrong defendant was named. Accordingly, summary judgment
should be denied.
PURSUANT TO THE RELATION-BACK DOCTRINE AND BECAUSE THE
DEPARTMENT OF EDUCATION HAD ACTUAL NOTICE OF THE COMPLAINT
THE COURT SHOULD ALLOW THE DEPARTMENT OF EDUCATION TO BE
RETROACTIVELY NAMED IN THE NOTICE OF COMPLAINT
7. The Court should not only estop the City from asserting that they are not the
properly named defendant but should also allow the plaintiffs to amend the Department of
Education as a defendant to the action. The record shows that within the statutory period of 90
days, or reasonable time thereafter, the Department of Education was on actual notice of the
specific events that gave rise to the complaint.
8. In a case where the plaintiff sought leave to serve late notice on the Department
of Education and NYC this Court holds:
The Supreme Court improvidently exercised its discretion in
denying that branch of the petition which was for leave to serve a
late notice of claim on the New York City Department of
Education…By demonstrating that the DOE acquired timely
knowledge of the essential facts of the claim and conducted an
investigation, the petitioners met their initial burden of establishing
a lack of substantial prejudice to the DOE should late service of the
notice of claim be allowed.
Allende v. New York City, 69 A.D.3d 931, 932-933 (N.Y. App. Div. 2d Dep't 2010). See also
Matter of Vasquez v. City of Newburgh, 35 A.D.3d 621, 623-624 (N.Y. App. Div. 2d Dep't
2006) (“the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of
claim where, as here, there is actual notice and an absence of prejudice”); Kennedy v City of
New York, 2011 N.Y. Misc. LEXIS 910, 4-5 (N.Y. Sup. Ct. Feb. 14, 2011).

5. 9. Here, the Board of Education had actual notice of the claim. Furthermore, even
where there is no good excuse for late notice so long as there is actual notice and an absence of
prejudice to the defendant the court will give leave for late notice Matter of Vasquez at 624. A
fortiori here, where the plaintiff has a very good excuse for not giving timely notice –namely
misrepresentations by the defendant in conjunction with the confusion that prevailed at that time–
the Court should give leave to amend the notice of claim to include the Department of Education.
10. The Court should also give leave to amend the notice of complaint pursuant to
CPLR § 203(c); the relation-back doctrine. The Court of Appeals in Duffy v. Horton Memorial
Hospital, 66 N.Y.2d 473, 477 (N.Y. 1985) explained that
…where, within the statutory period, a potential defendant is fully
aware that a claim is being made against him with respect to the
transaction or occurrence involved in the suit, and is, in fact, a
participant in the litigation, permitting an amendment to relate back
would not necessarily be at odds with the policies underlying the
Statute of Limitations. In such cases, there is room for the exercise
of a sound judicial discretion to determine whether, on the facts,
there is any operative prejudice precluding a retroactive amendment.
at 823. Here the record shows that the Board of Education was fully appraised of the claim and,
but for the defendant misrepresentations the Board of Education, knew that they would have been
immediately named in the notice of claim by the plaintiffs. Therefore, the Court should give the
plaintiffs leave to amend their complaint to include the Department of Education. See also
Weinstein, Korn & Miller CPLR Manual § 2.09.
11. Likewise in Buran v. Coupal, 87 N.Y.2d 173, 178 (N.Y. 1995) the Court
articulated three conditions necessary to trigger the relation-back doctrine:

6. (1) both claims arose out of same conduct, transaction or occurrence,
(2) the new party is 'united in interest' with the original defendant,
and by reason of that relationship can be charged with such notice
of the institution of the action that he will not be prejudiced in
maintaining his defense on the merits and (3) the new party knew or
should have known that, but for an excusable mistake by plaintiff as
to the identity of the proper parties, the action would have been
brought against him as well.
Here there is no dispute that the first and the third prong are satisfied. The plaintiff
further contends that the second prong is satisfied because as a matter of fact
parties are united in interest where there is a jural or legal
relationship giving rise to potential vicarious liability. Underlying
the doctrine of vicarious liability . . . is the notion of control. The
person in a position to exercise some general authority or control
over the wrongdoer must do so or bear the consequences.
LeBlanc v Skinner, 2012 N.Y. App. Div. LEXIS 8430, 14-15 (N.Y. App. Div. 2d Dep't Dec. 12,
2012).
Here plaintiff entered the park not as a student of P.S. 180 or as an employee working for
the Department of Education but rather as a child entering a city owned and controlled park.
Pursuant to 56 RCNY §1-01 – §1-08 the use of the park is controlled and regulated by the City
Department of Parks and Recreation. The plaintiff was able to access the park only because it is a
Public Park for which NYC not only owns –like the school building for which only students and
employees can gain access– but also regulates and controls access to the park. Conversely, the
plaintiffs require permission from the school to enter the actual school building. Therefore, at the
time that the plaintiff entered the park the park was not “under the exclusive care, custody, and
control of the Board of Education, see NY City Charter, ch 20, § 521 [a]. Rather the City, at a
minimum, also controlled public access to the park and it was obligated to make sure that the
Department of Education did not act in a way that endangered the public and the plaintiff. Since

7. the City did not, the City must bear the consequences. Likewise, since the City has control there
is vicarious liability and thus unity of interest. Since the second prong of the relation-back doctrine
is satisfied, the Court should allow the plaintiffs to amend their notice of claim to add the
Department of Education.
12. It follows that the cases the defendant cites, in which the Court holds that as a
matter of law the City does not control the parks that exist on school premises’, are distinguishable.
In each case cited by defendant, the plaintiff had a preexisting relationship with the Department of
Education, either as a student, see Cruz v. New York City Dep't of Educ., 26 Misc. 3d 1208A
(N.Y. Sup. Ct. 2010) or as employee, see Indar v. City of New York, 71 A.D.3d 635 (N.Y. App.
Div. 2d Dep't 2010) and Goldes v. City of New York, 19 A.D.3d 448 (N.Y. App. Div. 2d Dep't
2005). Thus for the purposes of those preexisting relationships the City did not have any day-to-
day control because any employee or student of that school could enter the park, even if the City
forbids general public access.
13. In summation, the Court should deny the defendants motion for summary
judgment, because the City is the proper defendant regardless of whether the City is an out-of-
possession landlord of the park. Likewise, pursuant to the relation-back doctrine and equitable
estoppel, the Court should bar defendant’s argument that it is improperly named a party to the case.
Finally, because the Department of Education had actual notice of the claim, the Court should
allow the plaintiffs to amend their notice of claim to include the Department of Education.
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