Opinion
Nos. 2022-00039 2023-01399 Index No. 711133/21
08-07-2024
In the Matter of Brian Polak, Appellant, v. MTA Long Island Railroad, et al., Respondents.
Edelman, Krasin & Jaye, PLLC, Westbury, NY (Aaron D. Fine of counsel), for appellant. Cullen and Dykman LLP, New York, NY (Michael E. Joseph of counsel), for respondents.
Edelman, Krasin & Jaye, PLLC, Westbury, NY (Aaron D. Fine of counsel), for appellant.
Cullen and Dykman LLP, New York, NY (Michael E. Joseph of counsel), for respondents.
VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, LILLIAN WAN, CARL J. LANDICINO, JJ.
DECISION & ORDER
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioner appeals from (1) an order of the Supreme Court, Queens County (Pam Jackman Brown, J.), entered December 3, 2021, and (2) an order of the same court entered January 4, 2023. The order entered December 3, 2021, denied the petition and, in effect, dismissed the proceeding. The order entered January 4, 2023, denied the petitioner's motion to resettle the order entered December 3, 2021, and for leave to renew and reargue the petition.
ORDERED that the order entered December 3, 2021, is affirmed; and it is further, ORDERED that the appeal from so much of the order entered January 4, 2023, as denied that branch of the petitioner's motion which was to resettle the order entered December 3, 2021, is dismissed; and it is further, ORDERED that the appeal from so much of the order entered January 4, 2023, as denied that branch of the petitioner's motion which was for leave to reargue is dismissed; and it is further, ORDERED that the order entered January 4, 2023, is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the respondents.
On October 5, 2020, while working on a railroad construction project, the petitioner allegedly was injured when he was struck by a crane. On May 14, 2021, the petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim upon the respondents, MTA Long Island Railroad, Metropolitan Transportation Authority, and Long Island Railroad. In support of the petition, the petitioner submitted, inter alia, a workers' compensation information form and an incident investigation report prepared by a nonparty railroad construction firm.
On June 4, 2021, the petitioner's counsel was informed that he failed to file a request for judicial intervention with the petition. As such, on the same day, the petitioner's counsel re-filed the notice of petition and included a request for judicial intervention. However, counsel did not include the petition or the supporting documents with his additional filing. The respondents opposed the petition on the merits, referencing the petitioner's supporting documents. In an order entered December 3, 2021, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The court concluded that the petition was defective because the petitioner failed to attach the supporting documents to his re-filed notice of petition.
Thereafter, the petitioner moved to resettle the order entered December 3, 2021, and for leave to renew and reargue the petition. In an order entered January 4, 2023, the Supreme Court denied the petitioner's motion. The petitioner appeals from both orders.
The appeal from so much of the order entered January 4, 2023, as denied that branch of the petitioner's motion which was to resettle the order entered December 3, 2021, must be dismissed, as no appeal lies from "an order denying a motion for resettlement of the substantive or decretal provisions of a prior order" (Matter of Harrington v Tullo, 181 A.D.3d 604, 605, citing Blue Chip Mtge. Corp. v Strumpf, 50 A.D.3d 936, 937). The appeal from so much of the order entered January 4, 2023, as denied that branch of the petitioner's motion which was for leave to reargue the petition must also be dismissed, as no appeal lies from an order denying reargument (see P.S. Fin., LLC v Eureka Woodworks, Inc., 213 A.D.3d 863, 864; Doctors for Surgery, PLLC v Aristide, 192 A.D.3d 991, 992).
The Supreme Court erred in denying the petition on the ground that the petitioner failed to attach the necessary supporting documents. The petition and the necessary supporting documents were originally filed without a request for judicial intervention. Pursuant to 22 NYCRR 202.6, a petitioner generally must obtain a request for judicial intervention in order to commence a special proceeding, since the court is directed not to accept the papers for filing without it. "The failure to include a request for judicial intervention does not constitute a jurisdictional defect" (Matter of Buonocore v Village of S. Nyack, 238 A.D.2d 336, 338). In this case, it appears that the County Clerk erroneously accepted the papers without a request for judicial intervention, and the petitioner's subsequent filing of a request for judicial intervention supplemented his original filing in order to correct the clerk's error. Under these unique circumstances, the clerk's error, which was expeditiously corrected by the petitioner, should not adversely affect the petitioner (cf. id.).
In the interest of judicial economy, we deem it appropriate to address the petition on the merits, rather than to remit the matter to the Supreme Court, Queens County, to do so (see Nisimova v Starbucks Corp., 108 A.D.3d 513, 514).
On the merits, the petition was properly denied. General Municipal Law § 50-e(1)(a) requires service of a notice of claim within 90 days after the claim arises, as a condition precedent to commencement of a tort action against a municipal corporation. General Municipal Law § 50-e(5) authorizes a court, in its discretion, to extend that period of time (see Public Authorities Law § 1276[2]). In determining whether to grant the extension, the statute directs the court to consider, "in particular, whether the public corporation... acquired actual knowledge of the essential facts constituting the claim within the [90-day period] or within a reasonable time thereafter," and to "consider all other relevant facts and circumstances, including... whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits" (General Municipal Law § 50-e[5]). Other factors to consider include whether the petitioner had a reasonable excuse for the failure to serve a timely notice of claim (see Matter of Salazar v City of New York, 212 A.D.3d 633, 634; Matter of Bermudez v City of New York, 167 A.D.3d 733, 734). "While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance" (Matter of Placido v County of Orange, 112 A.D.3d 722, 723 [citations omitted]; see Parker v City of New York, 206 A.D.3d 936, 938; Matter of Joy v County of Suffolk, 89 A.D.3d 1025, 1026).
Here, the petitioner submitted a workers' compensation information form and an incident investigation report prepared by a nonparty railroad construction firm in support of the petition. However, neither of those documents were prepared by the respondents and there is no evidence that the respondents were ever in possession of those documents. The petitioner thus failed to establish that the respondents had actual knowledge of the essential facts constituting the claim (see Lobos v City of New York, 219 A.D.3d 720, 721; Matter of Camet v County of Suffolk, 100 A.D.3d 882, 883). The petitioner also failed to provide a reasonable excuse for his failure to serve a timely notice of claim (see Matter of Sumi v Village of Stewart Manor, 219 A.D.3d 490, 491; Matter of Zelin v Blind Brook-Rye Union Free Sch. Dist., 164 A.D.3d 1352, 1353).
The Supreme Court properly denied that branch of the petitioner's motion which was for leave to renew the petition. A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (id. § 2221[e][3]). "[A] motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Seegopaul v MTA Bus Co., 210 A.D.3d 715, 716). Here, in support of this branch of the motion, the petitioner submitted a MTA Capital Construction injury report which states that a "spotter" should have been utilized during the work that allegedly caused the petitioner's injury. However, the petitioner failed to provide a reasonable justification for failing to include that document with the petition (see Harway Terrace, Inc. v Shlivko, 220 A.D.3d 927, 928; Wilmington Sav. Fund Socy. FSB v Khandaker, 217 A.D.3d 729, 730). Although the document was provided to the petitioner after the filing of the petition in response to a request pursuant to the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL), the petitioner did not make that FOIL request until nearly two months after filing the petition. The petitioner failed to explain that lengthy delay in making his FOIL request (see Abrams v Berelson, 94 A.D.3d 782, 784).
The respondents' remaining contentions need not be reached in light of our determination.
BRATHWAITE NELSON, J.P., MALTESE, WAN and LANDICINO, JJ., concur.