| Matter of Bonaguro v City of New York |
| 2014 NY Slip Op 07658 [122 AD3d 731] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of John Bonaguro,Respondent, v City of New York et al., Appellants. |
Fabiani Cohen & Hall, LLP, New York, N.Y. (Kevin B. Pollak and AntoninoLugara of counsel), for appellants.
Block O'Toole & Murphy, New York, N.Y. (Christina R. Mark and David L.Scher of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leaveto serve a late notice of claim upon the City of New York, or, in the alternative, in effect,for leave to conduct pre-action disclosure, the appeal is from an order of the SupremeCourt, Kings County (Ruchelsman, J.), entered October 30, 2013, which granted thatbranch of the petition which was for leave to serve a late notice of claim.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, that branch of the petition which was for leave to serve a late notice of claim isdenied, without prejudice to renewal, and the matter is remitted to the Supreme Court,Kings County, for further proceedings consistent herewith.
On February 14, 2012, the petitioner allegedly fell and sustained injuries whileperforming cleaning work as a laborer employed by a general contractor at a wastewatertreatment plant owned and operated by the City of New York, the New York CityDepartment of Environmental Protection, and the New York City Department ofSanitation (hereinafter collectively the appellants). The petitioner alleged that theaccident was witnessed by the petitioner's coworkers and an employee of the appellants.On the date of the accident, the petitioner was treated at the construction site by anon-site medical provider. Within two weeks of the accident, the petitioner filed a claimwith his employer's workers' compensation carrier. Medical records were submitted tothe carrier within the 90-day period following the accident. Thereafter, on August 17,2012, or approximately six months after the alleged accident, the petitioner commencedthis proceeding for leave to serve a late notice of claim upon the City. In the alternative,the petitioner, in effect, sought leave to conduct pre-action disclosure in connection withissues relating to whether an employee, officer, or agent of the City obtained actualknowledge of the essential facts constituting the claim within 90 days after it accrued or areasonable time thereafter, and whether the knowledge of that employee, officer, or agentcould be imputed to the City. The Supreme Court granted that branch of the petitionwhich was for leave to serve the late notice of claim upon the City.
[*2] The Supreme Court improvidently exercised itsdiscretion in granting that branch of the petition. In determining whether to grant apetition or motion for leave to serve a late notice of claim, a court must consider, interalia, whether the petitioner demonstrated a reasonable excuse for the delay, whether thepublic corporation acquired actual knowledge of the essential facts constituting the claimwithin 90 days after it arose or within a reasonable time thereafter, and whether the delaywould substantially prejudice the public corporation in maintaining its defense on themerits (see General Municipal Law § 50-e [5]; Matter of Snyder v County ofSuffolk, 116 AD3d 1052 [2014]; Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d790 [2014]; Matter ofDestine v City of New York, 111 AD3d 629 [2013]; Platt v New York City Health& Hosps. Corp., 105 AD3d 1026, 1027 [2013]).
Here, the petitioner's assertion that he was unaware of the notice of claimrequirement was not a reasonable excuse for his initial delay in serving a notice of claimupon the City (see Matter of Destine v City of New York, 111 AD3d at 629; Meyer v County of Suffolk, 90AD3d 720, 721 [2011]; Matter of Grant v Nassau County Indus. Dev. Agency, 60 AD3d946, 947 [2009]). While the absence of a reasonable excuse is not fatal to thepetition where the municipality had actual knowledge of the essential facts constitutingthe claim, and there was an absence of prejudice to the municipality (see Matter of Viola v RonkonkomaMiddle Sch., 107 AD3d 1009, 1010 [2013]; Matter of McLeod v City of New York, 105 AD3d 744,746 [2013]), the record before this Court does not demonstrate that the appellants hadactual knowledge of the essential facts constituting the claim within 90 days of thealleged accident or a reasonable time thereafter (see Matter of Valila v Town of Hempstead, 107 AD3d 813,814 [2013]; Matter of Andersonv Town of Oyster Bay, 101 AD3d 708, 709 [2012]; Matter of Cicio v City ofNew York, 98 AD2d 38, 39 [1983]; Matter of Grant v Nassau County Indus.Dev. Agency, 60 AD3d at 948; Matter of Bruzzese v City of New York, 34 AD3d 577, 578[2006]). Further, on the record presently before us, the appellants would be prejudiced bythe delay between the time the claim arose and the time the petitioner commenced thisproceeding for leave to serve a late notice of claim (see Matter of Anderson v Townof Oyster Bay, 101 AD3d at 709-710; Matter of Groves v New York City Tr. Auth., 44 AD3d856, 857 [2007]; Matter of Clark v City of New York, 292 AD2d 605[2002]; Matter of Mark v Board of Educ. of City of N.Y., 255 AD2d 586[1998]). This conclusion, however, does not end our inquiry.
In light of its determination, the Supreme Court did not address that branch of thepetition which, in effect, sought leave to conduct pre-action disclosure in connectionwith the issues relating to whether the City obtained actual knowledge of the essentialfacts constituting the claim, and, if so, the timing thereof. Thus, that branch of thepetition remains pending and undecided (see Matter of Interboro Ins. Co. v Maragh, 51 AD3d 1024,1026 [2008]; Matter of Valley Forge Ins. Co. v Schofield, 283 AD2d 507, 508[2001]; Katz v Katz, 68 AD2d 536, 542-543 [1979]), and the matter must beremitted to the Supreme Court, Kings County, for a determination of that branch of thepetition which was for leave to conduct pre-action disclosure. Since, under thecircumstances of this case, a determination of that branch of the petition by the SupremeCourt may have an effect on whether the petitioner can establish that the City obtainedactual knowledge of the essential facts constituting the claim within 90 days of itsaccrual, or a reasonable time thereafter, and whether the City was prejudiced by the lapseof time between the accident and the commencement of this proceeding, our denial ofthat branch of the petition which was for leave to serve a late notice of claim upon theCity is without prejudice to renewal. Rivera, J.P., Hall, Austin and Cohen, JJ.,concur.