Opinion
No. 16–0669.
11-28-2016
Neil DONALD and Maureen Donald, Claimants, v. TOWN OF NEW BALTIMORE and Town of New Baltimore Highway Department, Defendants.
John G. Rusk, Esq., Rusk, Wadlin, Heppner & Martuscello, LLP, Kingston, Counsel for Plaintiff, movant. Crystal R. Peck, Esq., Bailey, Johnson, DeLeonardis & Peck, P.C., Albany, Counsel for Defendant.
John G. Rusk, Esq., Rusk, Wadlin, Heppner & Martuscello, LLP, Kingston, Counsel for Plaintiff, movant.
Crystal R. Peck, Esq., Bailey, Johnson, DeLeonardis & Peck, P.C., Albany, Counsel for Defendant.
LISA M. FISHER, J.
This is an application by Claimants to file a late notice of claim pursuant to General Municipal Law § 50–e (5). Claimant Neil Donald alleged he "sustained injury on or about October 5, 2015, while in the course of his employment as an alarm technician for CIA Security Systems." He and his co-worker, Mike Wyatt, were called to a town highway building to replace security equipment as part of a construction project. He alleges the floor was dirt, muddy, and had water puddles caused by a leaking roof which was shorting out the old alarm system.
Claimant claims the project required tall ladders from the roof of the work van. He alleges he walked through the muddy area to place a four foot step-ladder along the work van to get the ladders off the roof of the work van. He alleges retrieving the tall ladders from the roof of the work van and he began to descend the step-ladder. Claimant alleges the "ladder shifted" and "[b]ecause there was mud on my feet, my feet slipped on the steps of the step-ladder after it shifted causing me to fall off the ladder to the ground." As a result, he sustained personal injuries revealed in an MRI on October 12, 2015 and underwent surgery on January 14, 2016.
After he fell, his co-worker Mike Wyatt helped him off the ground. Mr. Wyatt allegedly called and informed their boss and supervisor, Joe Sachetti, about the incident. Claimant immediately went to Urgent Care in Coxsackie, and was referred to Capital Region Orthopedics in Catskill.
Claimant contends, "[u]pon information and belief," on the day of the incident Mr. Sachetti and Town Highway Supervisor, Denis Jordan, met and "[i]t is my understanding that they discussed the accident." Further, Claimant states "[u]pon information and belief, both Mr. Sachetti and Mr. Jordan spoke with my co-workers, Mike Wyatt, at the location, saw the accident location, had all of the information available to them concerning my fall, the condition of the premises, and had knowledge of the fact that I went to receive immediate care."
On the same day as the incident, Claimant completed his workers' compensation employee Claim Form (C–3 Form). Claimant contends he originally handled his workers' compensation case until he began to experience issues with the workers' compensation carrier. He retained counsel who advised him that he may have a third-party claim against the property owner.
Claimant states he "immediately" contacted his present counsel, but he was already beyond the 90 day notice of claim requirement. He claims during the 90 day period following his injury, "I was receiving ongoing medical treatment, was preparing for, having surgery and/or recovering from surgery at or about the time of the expiration of the ninety (90) day claim period." Further, he alleges during the 90 day period that he "was focused on trying to receive the appropriate medical treatment in an effort to return to work and to provide for [his] family."
Therefore, Claimant alleges he should be permitted to file a late notice of claim pursuant to General Municipal Law § 50–e (5) because Defendants are not prejudiced and had actual notice since the Highway Superintendent, Denis Jordan, was present at the scene of the incident, had discussions with Claimant's supervisor and co-worker, and had the ability to conduct their investigation on the day of the incident.
Defendants oppose the application, arguing there is no reasonable excuse for the delay in filing the notice of claim, Defendants did not have knowledge of the incident, and Defendants are substantially prejudiced because the scene of the incident is no longer available, there are no photographs, and Defendants have not been able to inspect the ladder. This is supported with an affidavit from Denis Jordan, who avers that he did not have any of the conversions that Claimant alleged "upon information and belief[.]" Further, while he admits to being at the worksite that day, he avers there were no indications of the claimed incident, no one appeared injured, and no one advised him of the incident.
"It is well settled that Supreme Court has broad discretion in deciding whether to grant an application for leave to file a late notice of claim pursuant to General Municipal Law § 50–e, providing the application is made prior to the expiration of the one year and 90–day statute of limitations" (Matter of Conger v. Ogdensburg City School Dist., 87 AD3d 1253, 1245 [3d Dept 2011], quoting Matter of Lanphere v. County of Washington, 301 AD3d 936, 937 [3d Dept 2003] [citations omitted]; see Matter of Curiel v. Town of Thurman, 289 A.D.2d 737, 738 [3d Dept 2001], lv denied 97 N.Y.2d 611 [2002] ; see also General Municipal Law § 50–e [5 ] ). In exercising this discretion, the court must consider certain statutory factors, including "(1) whether a reasonable excuse for the delay was presented, (2) whether the [defendants] or its agents had actual knowledge of the essential facts of the claim within 90 days after the claim arose, and (3) whether the delay in service of the notice of claim substantially prejudiced the ability to defend the claim on the merits" (Matter of Isereau v. Brushton–Moira School Dist., 6 AD3d 1004, 1005 [3d Dept 2004] ; see General Municipal Law § 50–e [5 ]; see also Matter of Kim v. Dormitory Auth. of the State of NY, 140 AD3d 1459, 1460 [3d Dept 2016] ; Matter of Kirtley v. Albany County Airport Auth., 67 AD3d 1317 [3d Dept 2009] ).
While the presence or absence of any one of the numerous relevant factors the court must consider is not determinative (see Matter of Cornelius v. Board of Educ. of Delhi Cent. School Dist., 77 AD3d 1048, 1049 [3d Dept 2010] ), the case law makes it clear that actual knowledge "is a factor which should be accorded great weight" ( Matter of Stenowich v. Colonie Indus. Dev. Agency, 151 A.D.2d 894, 895 [3d Dept 1989], lv denied 74 N.Y.2d 615 [1989] ; see Matter of Kirtley, 67 AD3d at 1318 ["no one factor being dispositive."]; see also General Municipal Law § 50–e [5 ] ).
Here, the Court does not find a reasonable excuse for the delay. Claimant claims both he did not know of the filing requirement, which "ignorance of the filing requirement is no excuse" ( Matter of Cornelius, 77 AD3d at 1049 ), and that his ongoing medical treatment prevented him from further complying. However, he still completed his workers' compensation claim the day of the incident. His knee surgery was also more than 90 days after the incident, thus his surgical recovery did not delay his claim which had already expired. Moreover, similar knee injuries have been found to not constitute a reasonable excuse for the delay. (See Matter of Isereau, 6 AD3d at 1006.) Noticeably absent from Claimant's affidavit is any chronology of his workers' compensation claim, when and what was submitted, and whether he was prosecuting his claim during the 90–day time period. Nor are there any medical records establishing Claimant's treatment during the 90–day period.
The Court also finds Defendants did not have actual notice. The sworn affidavit of Mr. Jordan strongly rebuts the assumptions and "upon information and belief" statements in Claimant's affidavit. Again, noticeably absent is any affidavit from Mr. Wyatt or Mr. Sachetti averring they reported the conditions to Mr. Jordan on the day of the incident. Claimant was not present and is not qualified to render those statements which amount to mere speculation and hearsay. Mr. Jordan makes it clear that he was at the scene of the incident, but no one reported to him the incident, no one appeared injured, and no one informed Defendants of the incident. There is no other evidence that Defendants have actual knowledge.
The Court finds Defendants have been substantially prejudiced in the delay. While the Court rejects Defendants' claim that they have been unable to inspect the ladder, as there is no evidence to suggest that the ladder involved in the incident is currently unavailable or has been destroyed, the Court concludes differently about the location of the incident. Mr. Jordan states he can only speak to the general condition of the floor around the time of the incident, and he cannot "recall the specific condition of the floor or the area" where Claimant was injured. From the moving papers and the annexed notice of claim, Mr. Jordan further claims he cannot ascertain the location of the incident. Further, the Court notes that the area was subject to a restoration project, hence Claimant's presence on the subject property, which further obscures the location of the incident and the conditions present, i.e., leaking roof. Without the location and ability to ascertain the condition of the floor where the ladder was placed, Defendants would indeed be substantially prejudiced in assessing whether Claimant was the sole proximate cause of the fall by placing the ladder in an unsafe position before ascending, such as unleveled or muddy ground.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Claimant's motion is DENIED, and all other relief requested in the proposed notice of claim therein is denied in its entirety.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.