Opinion
513116/17
11-21-2018
Cornelia WILLIAMS, Petitioner, v. NYC HEALTH AND HOSPITALS, Kings County Hospital Center and NYC Health and Hospitals, Respondents.
Counsel for petitioner: Nesenoff & Miltenberg, LLP, 363 Seventh Avenue, 5th Floor, New York, New York 10001 Counsel for respondent: Corporation Counsel, 100 Church Street, New York, New York 10007
Counsel for petitioner: Nesenoff & Miltenberg, LLP, 363 Seventh Avenue, 5th Floor, New York, New York 10001
Counsel for respondent: Corporation Counsel, 100 Church Street, New York, New York 10007
Karen B. Rothenberg, J.
In this proceeding by petitioner Cornelia Williams (petitioner) against respondents Kings County Hospital Center, sued herein as NYC Health and Hospitals Kings County Hospital Center (KCHC), and New York City Health and Hospitals Corporation, sued herein as NYC Health and Hospitals (NYCHHC) (collectively, respondents), petitioner moves, under motion sequence number one, for an order, pursuant to General Municipal Law § 50-e (5), and Education Law § 3813 (2-a), granting her leave to serve a proposed amended notice of claim. Respondents move, under motion sequence number two, for an order, pursuant to McKinney's Unconsolidated Laws of NY § 7401 (2) (New York City Health and Hospitals Corporation Act § 20 [2], as added by L 1969, ch 1016, § 1, as amended by L 1990, ch 804, § 122), Labor Law § 740 and § 741, and CPLR 401 and 3211 (a) (7), dismissing the petition based on the grounds that petitioner failed to timely serve a notice of claim and the petition fails to state a cause of action, entering judgment in their favor, and granting them costs, fees, and disbursements.
This section is inapplicable because this action does not involve the presentation of claims against the governing body of a school district.
Factual and Procedural Background
NYCHHC is a public benefit corporation established by the New York State Legislature to operate, among other facilities, New York City's municipal hospitals, including KCHC, a hospital located at 451 Clarkson Avenue, in Brooklyn, New York. Petitioner is a registered professional nurse, licensed in New York, who was formerly employed by NYCHHC.
Petitioner was hired by NYCHHC as a nurse educator at KCHC on October 15, 2013, and, in February 2015, she was told she was being promoted to an administrative assistant director of nursing position. Petitioner alleges that the paperwork for her promotion was never processed, and that on April 8, 2016, she was terminated from her employment at KCHC. Petitioner appealed her termination, but her appeal was denied and her termination was made final on April 15, 2016. Throughout petitioner's employment by NYCHHC, she allegedly reported that KCHC understaffed its emergency medicine department (ER) with an insufficient number of nurses, and, as a result, put patients' safety at risk. Petitioner claims that she was terminated in retaliation for whistleblowing with respect to her complaints regarding the understaffing of nurses and inadequate patient care caused by such understaffing.
On July 14, 2016, petitioner's counsel served a notice of claim, by certified mail with return receipt requested, upon KCHC's clerk, general counsel, and executive director, at 451 Clarkson Avenue, in Brooklyn, New York. Petitioner did not serve the notice of claim upon NYCHHC or the City of New York, as required by General Municipal Law § 50-e. The notice of claim set forth that petitioner's claim was based upon respondents' alleged violation of her statutory and constitutional rights by means of retaliation, as well as retaliation due to her whistleblowing activities at KCHC. It further set forth that petitioner will seek relief under the Labor Law and whistleblower statutes.
By a summons with notice, dated June 13, 2017, petitioner, as the plaintiff therein, commenced an action (Williams v. NYC Health and Hospitals Kings County Hospital Center and NYC Health and Hospitals , Sup Ct, Kings County, index No. 511618/17) (Williams I) against respondents, as the defendants therein. Petitioner, in her complaint in Williams I, which was filed on August 21, 2017, alleged five causes of action. Petitioner's first cause of action alleged that she was unlawfully terminated in violation of Labor Law §§ 215, 740, and 741, in retaliation for her complaints that the ER was understaffed. Petitioner's second cause of action asserted that respondents' actions comprised extreme "bad faith" under Labor Law §§ 740 and 741, warranting a civil penalty. Petitioner's third cause of action alleged a violation of her employment contract because respondents failed to "process" her written employment contract with respect to her promotion as an administrative assistant director of nursing or to compensate her for the agreed upon salary. Petitioner's fourth cause of action asserted that she was retaliated against and wrongfully discharged by respondents in violation of the State False Claims Act ( State Finance Law § 187 et seq. ). Petitioner's fifth cause of action alleged that she was retaliated against and wrongfully discharged by respondents in violation of the Federal False Claims Act ( 31 USC § 3729 ).
On June 14, 2017, petitioner's counsel, without obtaining leave of the court to do so, sent an untimely amended notice of claim to KCHC and NYCHHC. The method of delivery of this notice of claim was not specified in the petition. This amended notice of claim is the same as petitioner's original notice of claim except that it adds NYCHHC to the caption and states that it was also sent to NYCHHC.
On July 5, 2017, petitioner filed the instant petition, seeking leave to serve a late amended notice of claim, pursuant to General Municipal Law § 50-e (5) or to deem her June 14, 2017 notice of claim timely served, nunc pro tunc. On December 13, 2017, respondents filed the instant cross motion to dismiss the petition. By an order dated August 2, 2018 in Williams I, Justice Reginald D. Boddie, following a motion to dismiss by respondents, dismissed all of petitioner's claims except for her whistleblower retaliation claims pursuant to Labor Law § 741.
Discussion
The service of a notice of claim within 90 days after the accrual of a claim is a condition precedent to commencing an action against NYCHHC (see Uncons Laws § 7401 [2 ]; General Municipal Law § 50-e [1 ] [a]; Scantlebury v. New York City Health & Hosps. Corp. , 4 N.Y.3d 606, 609, 797 N.Y.S.2d 394, 830 N.E.2d 292 [2005] ; Barnaman v. New York City Health & Hosps. Corp., 90 A.D.3d 588, 588, 934 N.Y.S.2d 443 [2d Dept. 2011] ; Argudo v. New York City Health & Hosps. Corp., 81 A.D.3d 575, 576, 916 N.Y.S.2d 143 [2d Dept. 2011] ; Wade v. New York City Health & Hosps. Corp., 59 A.D.3d 528, 530, 874 N.Y.S.2d 171 [2d Dept. 2009] ; Urena v. New York City Health & Hosps. Corp., 35 A.D.3d 446, 446, 825 N.Y.S.2d 529 [2d Dept. 2006] ). Petitioner's service of a notice of claim upon KCHC did not satisfy the statutory requirements mandating notification to the proper public body or official, i.e., a director or officer of NYCHHC or the Corporation Counsel (see Uncons Laws § 7401 [2 ]; General Municipal Law § 50-e [3 ] [a]; Viruet v. City of New York , 97 N.Y.2d 171, 176, 738 N.Y.S.2d 2, 763 N.E.2d 1143 [2001] ; Parochial Bus Sys. v. Board of Educ. of City of N.Y. , 60 N.Y.2d 539, 547-548, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983] ; Bender v. New York City Health & Hosps. Corp. , 38 N.Y.2d 662, 665, 382 N.Y.S.2d 18, 345 N.E.2d 561 [1976] ; Barnaman v. New York City Health & Hosps. Corp., 90 A.D.3d 588, 589, 934 N.Y.S.2d 443 [2d Dept. 2011] ). Thus, service upon KCHC did not constitute service upon NYCHHC, a separate public entity (see General Municipal Law § 50-e [1 ]; Uncons Laws § 7401 [2 ]; Public Authorities Law § 2980 ; Scantlebury , 4 N.Y.3d at 613-614, 797 N.Y.S.2d 394, 830 N.E.2d 292 ; Williams v. City of New York , 74 A.D.3d 548, 549, 905 N.Y.S.2d 23 [1st Dept. 2010] ).
Moreover, petitioner's service upon KCHC was untimely since it was served on July 14, 2016, more than 90 days after her claim accrued on April 8, 2016. Petitioner's contention that this accrual was tolled until April 15, 2016, the date that the appeal of her termination was denied, is without merit since the act of retaliation occurred on April 8, 2016, when she was terminated, and the appeal procedures provided by NYCHHC merely constituted a request for reconsideration (see Matter of De Milio v. Borghard , 55 N.Y.2d 216, 221, 448 N.Y.S.2d 441, 433 N.E.2d 506 [1982] ). Petitioner's subsequent notice of claim, which was served upon both NYCHHC and KCHC on June 14, 2017, was a nullity because it was untimely served without leave of the court.
Petitioner, however, in her instant petition, contends that she was not required to serve a notice of claim upon KCHC or NYCHHC based upon the recent holding by the Court of Appeals in Margerum v. City of Buffalo , 24 N.Y.3d 721, 5 N.Y.S.3d 336, 28 N.E.3d 515 [2015]. In Margerum , 24 N.Y.3d at 730, 5 N.Y.S.3d 336, 28 N.E.3d 515, the Court of Appeals rejected an argument by the City of New York for dismissal on the basis of the failure by the plaintiffs therein to serve a notice of claim prior to commencement of an action based on the Human Rights Law.
The Court of Appeals, in Margerum , 24 N.Y.3d at 730, 5 N.Y.S.3d 336, 28 N.E.3d 515, quoting General Municipal Law § 50-e [1 ] [a] [emphasis added], cited the language of General Municipal Law § 50-e (1) (a), which requires service of a notice of claim within 90 days after the claim arises "[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation." It further cited the language of General Municipal Law § 50-i (1), which "precludes commencement of an action against a city ‘for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city,’ unless a notice of claim has been served in compliance with [ General Municipal Law §] 50-e" ( id. , quoting General Municipal Law § 50-i [1 ] [emphasis added] ). It then noted that the Appellate Division departments addressing the issue of the requirement of a notice of claim where a Human Rights Law cause of action has been alleged "have determined that the General Municipal Law does not encompass a cause of action based on the Human Rights Law," and that " ‘[s]ervice of a notice of claim is therefore not a condition precedent to commencement of an action based on the Human Rights Law in a jurisdiction where General Municipal Law §§ 50-e and 50-i provide the only notice of claim criteria’ " ( id. , quoting Picciano v. Nassau County Civ. Serv. Commn. , 290 A.D.2d 164, 170, 736 N.Y.S.2d 55 [2d Dept. 2001] ; see also Sebastian v. New York City Health & Hosps. Corp. , 221 A.D.2d 294, 294, 634 N.Y.S.2d 114 [1st Dept. 1995] ; Palmer v. City of New York , 215 A.D.2d 336, 336, 627 N.Y.S.2d 42 [1st Dept. 1995] ). It consequently held that no notice of claim was required in that action since "[h]uman rights claims are not tort actions under [ General Municipal Law §] 50-e and are not personal injury, wrongful death, or damage to personal property claims under [ General Municipal Law §] 50-i" ( Margerum , 24 N.Y.3d at 730, 5 N.Y.S.3d 336, 28 N.E.3d 515 ). Petitioner argues that this holding should be applied with respect to her instant underlying action in Williams I since she asserts a whistleblower claim under Labor Law § 741, which is not a tort claim and is not a claim for personal injury, wrongful death, or damage to personal property.
Petitioner further relies upon the recent holding by the Appellate Division, First Department, in Castro v. City of New York , 141 A.D.3d 456, 36 N.Y.S.3d 113 [1st Dept. 2016] ) where the plaintiff therein first asserted a claim for improper termination under Labor Law § 740 (the private sector whistleblower law), but subsequently amended his complaint to, instead, assert a claim for retaliatory termination under Civil Service Law § 75-b (the public sector whistleblower law). The Appellate Division, First Department, in addressing the issue of whether a notice of claim was required, held that "[i]n light of Margerum , we now find that a notice of claim is not required for a Civil Service Law § 75-b claim" ( Castro , 141 A.D.3d at 458, 36 N.Y.S.3d 113 ). It ruled that "[a]s with the Human Rights Law claims that were the subject of Margerum , Civil Service Law § 75-b claims are not tort actions under [ General Municipal Law §] 50-e and are not personal injury, wrongful death, or damage to personal property claims under [ General Municipal Law §] 50-i" ( id. ). It further ruled that there was "no reason to encumber the filing of a retaliatory termination claim" by requiring a notice of claim ( id. ). In so holding, the Appellate Division, First Department, observed that "retaliatory termination claims are analogous to the Human Rights Law for purposes of compensation because [ Civil Service Law §] 75-b, Labor Law § 740 and the Human Rights Law all have ‘the goal of remediating adverse employment actions which, if allowed, would undermine an important public policy’ " ( id. at 458-459, 36 N.Y.S.3d 113, quoting Tipaldo v. Lynn, 76 A.D.3d 477, 482, 907 N.Y.S.2d 177 [1st Dept. 2010], affd 26 N.Y.3d 204, 21 N.Y.S.3d 173, 42 N.E.3d 670 [2015] ).
Notably, in Sager v. County of Sullivan , 145 A.D.3d 1175, 1176-1177, 41 N.Y.S.3d 443 [3d Dept. 2016], lv denied 29 N.Y.3d 902, 2017 WL 1137518 [2017], the Appellate Division, Third Department, granted a motion for summary judgment dismissing the complaint of the plaintiff therein based upon the failure of such plaintiff to comply with the notice of claim provision of General Municipal Law § 50-e, as imposed by County Law § 52. In so holding, the Appellate Division, Third Department, citing Margerum , 24 N.Y.3d at 730, 5 N.Y.S.3d 336, 28 N.E.3d 515 and Castro , 141 A.D.3d at 458, 36 N.Y.S.3d 113, noted that "appellate decisions involving complaints asserting a Civil Service Law § 75-b or similar claims against cities , in which the courts have ruled that the filing of a notice of claim is not required," were distinguishable because "the more narrow notice of claim provisions of General Municipal Law §§ 50-e and 50-i appl[ied], limiting the requirement for notices of claim to ‘tort’ claims ... or claims for ‘personal injury, wrongful death or damage to real or personal property’ " ( id. at 1176, 41 N.Y.S.3d 443, quoting General Municipal Law § 50-e [1 ] [a] and § 50-i [1 ] ). It stated that in contrast, County Law § 52, which applied to the claim against the defendant therein, namely, the County of Sullivan, mandated notices of claim "in a much broader scope of matters than the General Municipal Law," since it required that a notice of claim be served for "[a]ny claim ... against a county for damage" or "any other claim for damages arising at law or in equity" ( id. at 1176-1177, 41 N.Y.S.3d 443 ).
Here, since NYCHHC is named as a respondent, both General Municipal Law § 50-i and Uncons Laws § 7401(2), which specifically deals with actions against NYCHHC, are the applicable notice of claim provisions. Uncons Laws § 7401 (2) provides, in pertinent part, as follows:
"Except in an action for wrongful death, an action against the corporation for damages for injuries to real or personal property, or for the destruction thereof, or for personal injuries , alleged to have been sustained, shall not be commenced more than one year and ninety days after the cause of action
thereof shall have accrued, nor unless a notice of intention to commence such action and of the time when and the place where the tort occurred and the injuries or damage, were sustained, together with a verified statement showing in detail the property alleged to have been damaged or destroyed and the value thereof, or the personal injuries alleged to have been sustained and by whom, shall have been filed with a director or officer of the corporation within ninety days after such cause of action shall have accrued. All the provisions of section fifty-e of the general municipal law shall apply to such notice ..."(emphasis added).
Thus, both Uncons Laws § 7401 and General Municipal Law § 50-i"define the torts for which a notice of claim is required only as personal injury, wrongful death, or damage to property claim" ( Sebastian , 221 A.D.2d at 294, 634 N.Y.S.2d 114 ; see also Doe v. Belmare , 31 Misc.3d 904, 909, 920 N.Y.S.2d 623 [Sup. Ct., Kings County 2011] ). Petitioner's claim is not a claim for personal injury, wrongful death or damage to real or personal property. Rather, petitioner alleges a whistleblower retaliation claim under Labor Law § 741. Labor Law § 741, like Civil Service Law § 75-b, which was the statute involved in Castro , 141 A.D.3d at 458, 36 N.Y.S.3d 113, "prohibit[s] employers from taking retaliatory actions against their employees for disclosing wrongful activities by their employers" ( Hanley v. New York State Exec. Dept., Div. for Youth , 182 A.D.2d 317, 320, 589 N.Y.S.2d 366 [3d Dept. 1992] ). Therefore, under the reasoning in Castro , 141 A.D.3d at 458, 36 N.Y.S.3d 113, a notice of claim would not be required in the present action.
While based upon the above, it would appear that a notice of claim would not be required in this action alleging a claim under Labor Law § 741 for retaliatory discharge, the Appellate Division, Second Department, subsequent to the ruling by the Court of Appeals in Margerum , 24 N.Y.3d at 730, 5 N.Y.S.3d 336, 28 N.E.3d 515, but prior to the ruling by the Appellate Division, First Department, in Castro , 141 A.D.3d at 458, 36 N.Y.S.3d 113, in Hutchison v. Kings County Hosp. Ctr. , 139 A.D.3d 673, 32 N.Y.S.3d 210 [2d Dept. 2016], addressed the timeliness of a filing of a notice of claim where a plaintiff's claim was brought under Labor Law § 741. Specifically, the Appellate Division, Second Department, found that while the plaintiff therein had conceded that she did not file a timely notice of claim as to the retaliatory acts that she alleged occurred prior to the 90th day before the notice of claim was served, the Supreme Court should not have dismissed, on the ground that the plaintiff had not filed a timely notice of claim, so much of the cause of action pursuant to Labor Law § 741 as alleged retaliatory acts that were alleged to have occurred within the 90 days preceding the service of the notice of claim ( id. at 675, 32 N.Y.S.3d 210 ). Thus, the Appellate Division, Second Department, in so holding, did not rule that the service of a notice of claim was not required where a claim is brought under Labor Law § 741.
In Seifullah v. City of New York , 161 A.D.3d 1206, 1206, 74 N.Y.S.3d 506 [2d Dept. 2018] (which was decided after Castro [141 A.D.3d at 458, 36 N.Y.S.3d 113 ] ), which involved an action by a plaintiff alleging discrimination in employment in violation of the New York State Human Rights Law, the Appellate Division, Second Department, held that the filing of a notice of claim within three months after the plaintiff's claim arose was a condition precedent to the maintenance of her action against the Department of Education of the City of New York and Chancellor Carmen Fariña. In so ruling, the Appellate Division, Second Department, held that the plaintiff's reliance upon Margerum , 24 N.Y.3d at 730, 5 N.Y.S.3d 336, 28 N.E.3d 515 was misplaced because, in contrast to General Municipal Law §§ 50-e (1) and 50-i (1), Education Law § 3813 (1), the applicable notice of claim provision for a claim against the Department of Education, "broadly require[d] the filing of a notice of claim as a condition precedent to an ‘action ... for any cause whatever ,’ which include[d] the plaintiff's causes of action pursuant to the New York State Human Rights Law" (emphasis added) ( id. at 1206-1207, 74 N.Y.S.3d 506 ). Since only General Municipal Law §§ 50-e (1) and 50-i (1), and not Education Law § 3813 (1), applied to the plaintiff's claim against the City of New York, the Appellate Division, Second Department, citing Margerum , 24 N.Y.3d at 730, 5 N.Y.S.3d 336, 28 N.E.3d 515, further held that the plaintiff was not required to serve a notice of claim upon the City of New York ( id. at 1207, 74 N.Y.S.3d 506 ).
It appears from the cases set forth above that whether a notice of claim is required against a particular municipal entity turns upon whether the language of the notice of claim provision limits the definition of "tort" claims to those involving personal injury, wrongful death or property damages; or is broader, such as the notice of claim under the Education Law or the County Law. It is unclear as to whether the Appellate Division, Second Department, may in the future rule that a notice of claim is not required in a Labor Law § 741 claim against NYCHHC where the applicable notice of claim provision is Uncons Laws § 7401 and General Municipal Law §§ 50-e and 50-i. While petitioner's claim under Labor Law § 741 is not a claim for personal injury, wrongful death or property damages, based upon the ruling in Hutchison , 139 A.D.3d at 675, 32 N.Y.S.3d 210, which maintained the notice of claim requirement where a Labor Law § 741 claim was brought against NYCHHC, the court will address the issue of whether petitioner should be granted leave to serve a late notice of claim. Petitioner, in her petition, seeks leave to serve a late notice of claim and annexes a proposed amended notice of claim. In opposition, respondents argue that this court lacks the authority to grant leave to serve a late notice of claim on the basis that this application has been made after the expiration of the one-year statute of limitations of Labor Law § 740. This argument is rejected since petitioner's only remaining claim is asserted under Labor Law § 741, which has a two-year statute of limitations (see Labor Law § 740 [4 ] [d]; Wilson v. Exigence of Team Health , 151 A.D.3d 1849, 1849, 57 N.Y.S.3d 602 [4th Dept. 2017] ). Thus, the one-year and 90 days statute of limitations of Uncons Laws § 7401 (2) and General Municipal Law § 50-i (1) (c) applies. The time within which to commence an action against NYCHHC under Labor Law § 741 has not expired since petitioner filed her petition on July 5, 2017 within one-year and 90 days from the time her claim accrued on April 8, 2016 (see Uncons Laws § 7401 [2 ]; Labor Law § 740 [4 ] [d]; Matter of Moynihan v. New York City Health & Hosps. Corp. , 120 A.D.3d 1029, 1031, 993 N.Y.S.2d 260 [1st Dept. 2014] ). Therefore, this court does not lack the power to authorize a late service of a notice of claim (see Pierson v. City of New York , 56 N.Y.2d 950, 956, 453 N.Y.S.2d 615, 439 N.E.2d 331 [1982] ;. Young Soo Chi v. Castelli , 112 A.D.3d 816, 816-817, 979 N.Y.S.2d 75 [2d Dept. 2013] ).
While petitioner additionally asserts that a notice of claim should not be required on the basis that the relief sought by her is equitable in nature (see Kahn v. New York City Dept. of Educ. , 79 A.D.3d 521, 522, 915 N.Y.S.2d 26 [1st Dept. 2010], affd 18 N.Y.3d 457, 940 N.Y.S.2d 540, 963 N.E.2d 1241 [2012] ), petitioner does not assert a claim for only equitable relief. Rather, petitioner seeks monetary damages.
General Municipal Law § 50-e (5), made applicable to NYCHHC by Uncons Laws § 7401 (2), permits a court to entertain a motion for leave to serve a late notice of claim. "A petition for leave to serve a late notice of claim is addressed to the sound discretion of the court" ( Matter of Harper v. City of New York, 69 A.D.3d 939, 940, 896 N.Y.S.2d 78 [2d Dept. 2010] ; see also Nurena v. Westchester County, 120 A.D.3d 781, 782, 992 N.Y.S.2d 86 [2d Dept. 2014] ).
In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider the following factors:
"(1) whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter; (2) whether the delay substantially prejudiced the public corporation in maintaining its defense on the merits; and (3) whether the claimant has demonstrated a reasonable excuse for the delay" ( Matter of Leon v. New York City Health & Hosps. Corp. , 163 A.D.3d 670, 671, 81 N.Y.S.3d 140 [2d Dept. 2018] ; see also General Municipal Law § 50-e [5 ]; Matter of Rojas v. New York City Health & Hosps. Corp. , 127 A.D.3d 870, 872, 6 N.Y.S.3d 294 [2d Dept. 2015] ; Matter of Destine v. City of New York , 111 A.D.3d 629, 629, 974 N.Y.S.2d 123 [2d Dept. 2013] ; Platt v. New York City Health & Hosps. Corp. , 105 A.D.3d 1026, 1027, 964 N.Y.S.2d 223 [2d Dept. 2013] ; Matter of Felice v. Eastport/South Manor Cent. School Dist. , 50 A.D.3d 138, 147, 851 N.Y.S.2d 218 [2d Dept. 2008] ; Matter of Acosta v. City of New York , 39 A.D.3d 629, 630, 834 N.Y.S.2d 267 [2d Dept. 2007] ).
"[T[he presence or absence of any one of these factors is not necessarily dispositive" ( Matter of Leon , 163 A.D.3d at 671-672, 81 N.Y.S.3d 140 ). The " ‘ "most important" ’ " of these factors is " ‘whether the public corporation acquired actual notice of the essential facts constituting the claim within 90 days of the accrual of the claim or within a reasonable time thereafter’ " ( Brunson v. New York City Health & Hosps. Corp., 144 A.D.3d 854, 855, 42 N.Y.S.3d 34 [2d Dept. 2016], quoting Matter of Whittaker v. New York City Bd. of Educ. , 71 A.D.3d 776, 777, 896 N.Y.S.2d 171 [2d Dept. 2010], quoting Matter of Felice , 50 A.D.3d at 147, 851 N.Y.S.2d 218 ; see also General Municipal Law § 50-e [5 ]; Matter of Iacone v. Town of Hempstead , 82 A.D.3d 888, 888-889, 918 N.Y.S.2d 202 [2d Dept. 2011] ).
Here, respondents acquired actual knowledge of the essential facts constituting the claim within 90 days of the alleged retaliation against petitioner by her termination since respondents' employees, including their director, German Nelson, and associate executive of nursing, Josepha Miranda, were directly involved in the conduct which gave rise to petitioner's whistleblower claim (see Matter of Lavender v. Garden City Union Free School Dist. , 93 A.D.3d 670, 671, 939 N.Y.S.2d 568 [2d Dept. 2012] ; Erichson v. City of Poughkeepsie Police Dept., 66 A.D.3d 820, 821, 888 N.Y.S.2d 77 [2d Dept. 2009] ; Picciano , 290 A.D.2d at 174, 736 N.Y.S.2d 55 ). Respondents were thus on notice of the "facts that underlie the legal theory or theories on which liability is predicated" ( Kellman v. Hauppauge Union Free Sch. Dist., 120 A.D.3d 634, 635, 991 N.Y.S.2d 128 [2d Dept. 2014] ).
Respondents contend that they will be prejudiced by the delay. Respondents argue that they were not able to conduct a prompt and thorough investigation, which would have included preserving, gathering, and reviewing all relevant documents and interviewing all witnesses. Respondents, however, do not assert that any documents or witnesses are now unavailable (see Matter of Rojas , 127 A.D.3d at 873, 6 N.Y.S.3d 294 ; Gibbs v. City of New York , 22 A.D.3d 717, 719-720, 804 N.Y.S.2d 393 [2d Dept. 2005] ; Matter of Welch v. Board of Educ. of Saratoga Cent. School Dist., 287 A.D.2d 761, 764, 731 N.Y.S.2d 94 [3d Dept. 2001] ). Furthermore, in light of the fact that respondents had actual knowledge of the essential facts upon which petitioner's claims are based, there is no substantial prejudice to them in maintaining a defense on the merits (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 467-468, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016], rearg denied 29 N.Y.3d 963, 51 N.Y.S.3d 496, 73 N.E.3d 853 [2017] ; John P. v. Plainedge Union Free Sch. Dist., 165 A.D.3d 1263, 87 N.Y.S.3d 593 [2d Dept. 2018] ; Matter of Jaffier v. City of New York , 148 A.D.3d 1021, 1023, 51 N.Y.S.3d 108 [2d Dept. 2017] ; CSEA Empl. Benefit Fund v. Warwick Val. Cent. School Dist., 36 A.D.3d 582, 583, 828 N.Y.S.2d 179 [2d Dept. 2007] ; Rutigliano v. Board of Educ. of City of N.Y. , 176 A.D.2d 866, 867, 575 N.Y.S.2d 339 [2d Dept. 1991] ).
With respect to the factor of a reasonable excuse for delay, petitioner argues that her counsel believed that service on her immediate employer, KCHC, and KCHC's legal counsel, was sufficient, and that her counsel's law office failure constitutes an adequate excuse for failing to timely serve a notice of claim upon NYCHHC. Respondents argue that petitioner has not provided a reasonable excuse for her failure to timely serve a notice of claim upon them. However, "the absence of a reasonable excuse is not in and of itself fatal to the petition where, as here, there was actual notice and an absence of prejudice" ( Matter of Messick v. Greenwood Lake Union Free School Dist., 164 A.D.3d 1448, 1451, 84 N.Y.S.3d 215 [2d Dept. 2018] ; see also Matter of C.B. v. Carmel Cent. Sch. Dist., 164 A.D.3d 670, 672, 83 N.Y.S.3d 276 [2d Dept. 2018] ; Matter of Kerner v. County of Nassau , 150 A.D.3d 1234, 1236, 57 N.Y.S.3d 173 [2d Dept. 2017] ; Matter of Jaffier v. City of New York , 148 A.D.3d 1021, 1023, 51 N.Y.S.3d 108 [2d Dept. 2017] ; Erichson v. City of Poughkeepsie Police Dept. , 66 A.D.3d 820, 821, 888 N.Y.S.2d 77 [2d Dept. 2009] ). Respondents further assert that petitioner's notice of claim failed to give notice of her breach of employment contract claim and False Claims Act claims, and that Labor Law § 740claim is barred by the one-year statute of limitations. However, as noted above, these claims have already been dismissed by Justice Boddie's August 2, 2018 order in Williams I. Consequently, the court finds that petitioner should be granted leave to serve a late notice of claim with respect to her Labor Law § 741 claim, and respondents' motion to dismiss based upon a failure to timely serve a notice of claim upon both respondents must be denied.
While respondents additionally argue that petitioner's Labor Law § 741 claim lacks merit, only the petition is before the court and not the underlying action, which is pending before Justice Boddie. As discussed above, Justice Boddie, in his August 2, 2018 order, already addressed a motion to dismiss by respondents, and denied it with respect to petitioner's Labor Law § 741 claim.
Conclusion
Accordingly, petitioner's application for leave to serve a late amended notice of claim is granted, and petitioner's late amended notice of claim as against both respondents with respect to her Labor Law § 741 claim is deemed timely served, nunc pro tunc, in the form annexed to petitioner's moving papers (e-filed Doc No.2). Respondents' cross motion to dismiss the petition is denied in its entirety.
This constitutes the decision, order, and judgment of the court.