Opinion
E2019011963
02-15-2020
Maxie COHEN, Jr., Petitioner, v. WEBSTER CENTRAL SCHOOL DISTRICT and Steel Tech Fabricator, Inc., Respondents.
For the Plaintiff: DOLCE PANEPINTO, P.C., By: Sean E. Cooney, Esq., of counsel, 1260 Delaware Avenue, Buffalo, New York 14209 For the Defendant: BAXTER SMITH & SHAPIRO, P.C., By: Louis B. Dingeldey, Jr., Esq., 182 Dwyer Street, West Seneca, New York 14224
For the Plaintiff: DOLCE PANEPINTO, P.C., By: Sean E. Cooney, Esq., of counsel, 1260 Delaware Avenue, Buffalo, New York 14209
For the Defendant: BAXTER SMITH & SHAPIRO, P.C., By: Louis B. Dingeldey, Jr., Esq., 182 Dwyer Street, West Seneca, New York 14224
Christopher S. Ciaccio, J.
Petitioner commenced this action by Order to Show Cause seeking leave to file a late Notice of Claim as against the Webster Central School District ("Webster CSD") for damages from injuries arising out an accident that occurred on September 12, 2019.
Petitioner claims (by his affidavit attached to the Order to Show Cause) that on the day in question he was employed by Steel Tech Fabricator as a welder assigned to work at Webster Thomas High School, which is within the Webster Central School District. An unsecured "shore jack" fell from a height and struck him, causing personal injuries. He alleges that Webster CSD's liability stems from violations of New York Labor Law §§ 200, 240 and 241(6).
He further claims that before the expiration of the 90-day period within which to file the Notice of Claim, he spoke with three law firms as to whether each would represent him in an action arising out of the accident. All declined. On December 12, 2019, the day after the limitation period expired, he met with and retained Dolce Panepinto, PC to represent him, and on December 13, 2019 Dolce Panepinto, PC served, without prior leave of the court, a "Notice of Claim" upon the Respondent Webster Central School District.
The Order to Show Cause was signed by the court on January 2, 2020; service of the Petition, Affirmation and exhibits, including an unverified "proposed" Notice of Claim was made on January 7, 2020.
"The three key factors in determining whether leave to file a late notice of claim should be granted are whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual or constructive notice of the essential facts constituting the claim within 90 days of its accrual (see, General Municipal Law § 50-e [1] ) or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense" ( More v. Gen. Brown Cent. School Dist. , 262 AD2d 1030, 691 NYS2d 850 [4th Dept 1999], citing to General Municipal Law § 50—[e] ; see also Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 466 [2016] ; Kennedy v. Oswego City School Dist. , 148 AD3d 1790, 1790 [4th Dept 2017] ).
However, "(t)he presence or absence of any one factor enumerated within General Municipal Law concerning filing late claims against governmental entities is not necessarily determinative of the application, and the list of factors are ‘directive rather than exclusive’ ( Downey v. Macedon Ctr Volunteer Fire Dept , 179 AD2d 999 [4th Dept 1992] ; Rotoli v. Town of Gaines , 184 AD2d 1085 [4th Dept 1992].
Primary consideration, especially where, as here, the petitioner has conceded the Webster CSD had no actual notice of the accident, is given to whether the municipality was prejudiced by the late filing. "The prime, if not the sole, objective of the notice requirements of such a statute is to assure that the [government entity] had an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available." ( Teresta v. City of New York , 304 NY 440 [1952] ; see also More v. General Brown Cent. School Dist. , 262 AD2d 1030 [4th Dept 1999] ).
Petitioner claims that the Webster CSD received actual notice within a "reasonable time" of the accident, in that his served its "Notice of Claim" on December 13. Although it is true that "(a) late notice of claim served without leave of court is a nullity" ( Ashkenazie v. City of New York , 165 AD3d 785, 786 [2d Dept 2018], see also Matter of Katsiouras v. City of New York, 106 AD3d 916, 918 [2nd Dept 2013] ), delays of six months or less have been held to be minimal; thus the length of the delay here is not determinative of the motion (see e.g. Smith v. State , 63 AD3d 1524, 1525 [4th Dept 2009] [six month delay deemed minimal] ); compare Matter of Katsiouras at 918 [ten month delay between expiration of the time to serve and the date the motion was filed for leave to file deemed fatal to the application] ).
Petitioner next argues that the reason for the delay in serving the notice of claim was "reasonable." Petitioner claims no law firm would file on his behalf, which the Webster CSD has characterized as a "law office failure," an unacceptable excuse ( Smith v. Baldwin Union Free School Dist. , 63 AD3d 1078, 1079 [2d Dept 2009] ). However, Petitioner's experience is not the classic law office failure scenario — the failure of the law firm to file was not in any way due to petitioner's neglect of the deadline - thus his proffered excuse is given some weight, especially since his attorney promptly moved for leave to file after agreeing to take the case (see Serrano v. New York City Hous. Auth. , 197 AD2d 694, 696, [2d Dept 1993] ).
Lastly, having conceded that actual notice was not provided with the 90-day limitation period, petitioner argues that the Webster CSD has not suffered substantial prejudice.
In Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455 (2016), the Court of Appeals clarified that the petitioner has the initial burden of establishing lack of substantial prejudice, and that "(s)uch a showing need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice." ( Newcomb v. Middle Country Cent. School Dist. , 28 NY3d at 466 ).
Here, the petitioner has put forth a "plausible argument," which is, that the accident occurred on a construction site where a building owned by the Webster CSD was undergoing renovations, and that the nature of the site, as with many construction sites, was such that an investigation even immediately after the accident would not have produced more information concerning what happened that it did after the expiration of the 90-day time period (see Hayes v. Delaware-Chenango-Madison-Otsego Bd. of Co-op. Educ. Services , 79 AD3d 1405, 1405-06 [3d Dept 2010] ).
It can be reasonably inferred from the photographs attached to the affidavit that the building is still undergoing renovation, that the site in not "transitory" ( Ashkenazie v. City of New York , 165 AD3d 785, 787 [2d Dept 2018] ), and that the device by which the shore jack was and in all likelihood continues to be secured is still available for inspection.
As the petitioner has sustained his burden of showing "lack of substantial prejudice," the burden shifts to the respondent to show substantial prejudice, which it can do by presenting "record evidence indicat(ing) that substantial prejudice does in fact exist. Providing proof of substantial prejudice on the record is qualitatively and quantitatively different from a mere inference of prejudice." ( Newcomb v. Middle Country Cent. School Dist. , 28 NY3d at 466 )
The Court of Appeals makes it clear in Newton that "(g)eneric arguments and inferences will not establish substantial prejudice in the absence of facts in the record to support such a finding" (i.d. ) and that any "determination of substantial prejudice does not occur in a vacuum (Newcomb at 467).
Here, the arguments put forward by the Webster CSD that is has been "substantially prejudiced" allow perhaps an "inference of prejudice" but do not constitute the required "particularized evidentiary showing" (i.d. ) and do not rise above the level of "generic arguments" (i.d. ). "(R)espondents provided no particulars regarding the manner in which they were prejudiced by the delay, and the transitory nature of the construction site alone does not demonstrate that prejudice ( Hayes v. Delaware-Chenango-Madison-Otsego Bd. of Co-op. Educ. Services , 79 AD3d 1405, 1405-06 [3d Dept 2010] [internal quotations and citations omitted] ).
Webster CSD argues it is also prejudiced because it was unable to have the petitioner examined medically within a short period of time after the accident. However, petitioner claims medical treatment during that same period of time, thus medical records should be available for inspection and review, and it is hard to understand how any prejudice could flow from simply a delayed examination. To the contrary, it is the experience of this Court that examinations are often intentionally delayed until the claimant has reached maximum medical improvement.
Accordingly, the respondent Webster CSD is unable to make a "particularized showing" of record evidence show of substantial prejudice as a result of the late notice, and the motion for leave to file a Late Notice of Claim is GRANTED . Petitioner shall serve his Notice of Claim within twenty (20) days of entry of this Decision and Order.