| Matter of Grande v City of New York |
| 2015 NY Slip Op 08411 [133 AD3d 752] |
| November 18, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Frederick Grande et al.,Respondents, v City of New York et al., Appellants. |
Hitchcock & Cummings, LLP, New York, N.Y. (Christopher B. Hitchcock ofcounsel), for appellants.
Marder, Eskesen & Nass, New York, N.Y. (Leonard J. Wiener and KennethMarder of counsel), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leaveto serve a late notice of claim or to deem a late notice of claim timely served nunc protunc, the appeal is from (1) an order of the Supreme Court, Kings County (Baynes, J.),dated October 25, 2013, which granted the petition, and (2) an order of the same courtdated November 7, 2014, which denied their motion for leave to renew their oppositionto the petition.
Ordered that the orders are affirmed, with one bill of costs.
The petitioner Frederick Grande allegedly was injured when he fell from a ladderwhile working at a construction site in Brooklyn. The New York City Department ofEnvironmental Protection (hereinafter the DEP) was the general contractor for theproject. The Supreme Court granted the petition for leave to serve the City of New Yorkand the DEP (hereinafter together the appellants) with a late notice of claim or to deemthe petitioners' late notice of claim timely served nunc pro tunc. Subsequently, theappellants moved for leave to renew their opposition to the petition, and the SupremeCourt denied the motion.
In determining whether to grant a petition for leave to serve a late notice of claim orto deem a late notice of claim timely served nunc pro tunc, the court must consider allrelevant circumstances, including whether (1) the public corporation acquired actualknowledge of the essential facts constituting the claim within 90 days after the claimarose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excusefor the failure to serve a timely notice of claim, and (3) the delay would substantiallyprejudice the public corporation in its defense on the merits (see GeneralMunicipal Law § 50-e [5]; Matter of Rojas v New York City Health & Hosps. Corp.,127 AD3d 870, 872 [2015]; Matter of Destine v City of New York, 111 AD3d 629[2013]; Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d 138, 147 [2008]). "Apetition for leave to serve a late notice of claim is addressed to the sound discretion of thecourt" (Matter of Harper v Cityof New York, 69 AD3d 939, 940 [2010]; see Nurena v Westchester County, 120 AD3d 781, 781[2014]).
Here, the appellants acquired actual knowledge of the essential facts constituting the[*2]claim within 90 days after the claim arose, asdemonstrated by an accident report prepared at the construction site immediately after theaccident, an email summary of the accident addressed to DEP employees, and Grande'ssworn statements showing that the DEP had one or more safety inspectors present at theconstruction site at the time of the accident (see Matter of Joy v County of Suffolk, 89 AD3d 1025,1026 [2011]; Matter of Nurse vCity of New York, 87 AD3d 543, 543 [2011]; cf. Platt v New York City Health& Hosps. Corp., 105 AD3d 1026, 1028 [2013]). Furthermore, theappellants would not be substantially prejudiced in their ability to maintain a defense.Although the petitioners failed to provide a reasonable excuse for failing to timely servea notice of claim, under the circumstances of this case, that is not fatal to the petition (see Matter of McLeod v City ofNew York, 105 AD3d 744, 745 [2013]). Accordingly, the Supreme Courtprovidently exercised its discretion in granting the petition for leave to serve a late noticeof claim or to deem a late notice of claim timely served nunc pro tunc.
"[A] motion for leave to renew must be based upon new facts not offered on theprior motion that would change the prior determination, and must set forth a reasonablejustification for the failure to present such facts on the prior motion" (Worrell v Parkway Estates,LLC, 43 AD3d 436, 437] [2007]; see CPLR 3211 [e]; Bazile v City of New York, 94AD3d 929, 930-931 [2012]). A motion to renew is not a second chance freely givento parties who have not exercised due diligence in making their first factual presentation(see Bazile v City of New York, 94 AD3d at 931). Contrary to the appellants'contention, they failed to present "new facts not offered on the prior motion that wouldchange the prior determination" (Worrell v Parkway Estates, LLC, 43 AD3d at437; see Fitzsimons vBrennan, 128 AD3d 634, 636 [2015]). Accordingly, the Supreme Courtprovidently exercised its discretion in denying the appellants' motion for leave to renewtheir opposition to the petition. Mastro, J.P., Dickerson, Austin and Maltese, JJ.,concur.