Opinion
No. 2023-01031 Index No. 721221/22
09-11-2024
In the Matter of Matthew Benedetto, appellant, v. New York City School Construction Authority, respondent.
Feerick Nugent MacCartney, PLLC, South Nyack, NY (Christopher B. Pavlacka and J. David MacCartney, Jr., of counsel), for appellant. Morris Duffy Alonso Faley & Pitcoff, New York, NY (Iryna S. Krauchanka, Kevin G. Faley, and Ira E. Goldstein of counsel), for respondent.
Feerick Nugent MacCartney, PLLC, South Nyack, NY (Christopher B. Pavlacka and J. David MacCartney, Jr., of counsel), for appellant.
Morris Duffy Alonso Faley & Pitcoff, New York, NY (Iryna S. Krauchanka, Kevin G. Faley, and Ira E. Goldstein of counsel), for respondent.
BETSY BARROS, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, or, in the alternative, pursuant to CPLR 3102(c) to obtain pre-action disclosure, the petitioner appeals from an order of the Supreme Court, Queens County (Tracy Catapano-Fox, J.), entered December 21, 2022. The order granted the respondent's motion, in effect, to dismiss the petition, denied the petition, and dismissed the proceeding.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the respondent's motion, in effect, to dismiss the petition is denied, that branch of the petition which was for leave to serve a late notice of claim is granted, and those branches of the petition which were to deem a late notice of claim timely served nunc pro tunc and to obtain pre-action disclosure are denied as academic.
On March 11, 2022, the petitioner allegedly was injured while working at a school in Queens that was under construction when he slipped on a tarp covering a hole in the floor. In a letter dated March 16, 2022, Gallagher Bassett Services, Inc. (hereinafter GB), identified itself as the workers' compensation claims administrator for the respondent, New York City School Construction Authority (hereinafter the Authority). The petitioner submitted an employee's report of injury dated April 2, 2022, to GB. On October 7, 2022, the petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, or, in the alternative, pursuant to CPLR 3102(c) to obtain pre-action disclosure. The Authority moved, in effect, to dismiss the petition. The Supreme Court granted the Authority's motion, denied the petition, and dismissed the proceeding. The petitioner appeals.
"'General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time for a petitioner to serve a notice of claim'" (Matter of Lang v County of Nassau, 210 A.D.3d 773, 774, quoting Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460-461). "In determining whether to grant leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether (1) the claimant demonstrated a reasonable excuse for the failure to timely serve the notice, (2) the [public corporation] acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay in seeking leave would substantially prejudice the [public corporation] in its ability to defend against the action" (id.; see General Municipal Law § 50-e[5]; Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 N.Y.3d at 463-464; Matter of Wieman-Gibson v County of Suffolk, 206 A.D.3d 666, 666-667). "'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 Wieman-Gibson v County of Suffolk, 206 A.D.3d at 667, quoting Matter of Snyder v County of Suffolk, 116 A.D.3d 1052, 1053).
A petitioner's lack of a reasonable excuse for the delay in serving a timely notice of claim is "not necessarily fatal" to an application for leave to serve a late notice of claim (Matter of Johnson v County of Suffolk, 167 A.D.3d 742, 745 [internal quotation marks omitted]). "[W]here there is actual notice and absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim" (Matter of Joy v County of Suffolk, 89 A.D.3d 1025, 1027).
Here, the petitioner failed to demonstrate a reasonable excuse for his failure to serve a timely notice of claim. However, the Authority acquired timely notice of the accident from its agent, GB, which administered the petitioner's workers' compensation claim and had the opportunity to conduct an investigation, the results of which were within the Authority's "peculiar knowledge" (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 N.Y.3d at 468 [internal quotation marks omitted]). Further, the petitioner demonstrated a lack of substantial prejudice. As noted by the Court of Appeals, "[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" (id. at 466). Even if the Authority did not conduct a timely investigation, the fact that they could have done so met that burden. Further, since the tarp covering the alleged hole in the floor was highly transitory, the Authority would have been in the same position regarding any investigation even if the notice of claim had been timely served (see Matter of Simpson v City of New York, 222 A.D.3d 986, 988; Matter of Ortiz v Westchester County, 208 A.D.3d 487, 489; Matter of Shumway v Town of Hempstead, 187 A.D.3d 758, 959).
In opposition, the Authority failed to make "a particularized evidentiary showing" of prejudice, relying instead on conclusory assertions (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 N.Y.3d at 467; see Matter of Shumway v Town of Hempstead, 187 A.D.3d at 759). Moreover, the Authority, through GB, had knowledge of the petitioner's injuries at the latest on March 16, 2022, and appears to have investigated those injuries thereafter. Accordingly, we conclude that the balance of the statutory factors in this case warrants granting that branch of the petition which was for leave to serve a late notice of claim. Upon granting that branch of the petition, the Authority's motion, in effect, to dismiss the petition should be denied, and those branches of the petition which were to deem a late notice of claim timely served nunc pro tunc and to obtain pre-action disclosure should be denied as academic.
BARROS, J.P., MALTESE, WOOTEN and LOVE, JJ., concur.