Opinion
Index No.: 2097/2015
10-05-2015
In the Matter of the Application of: JOHN ABBATE and LISA DENNISON, individually and as legal guardian of John Abbate, Petitioners, v. THE CITY OF NEW YORK and THE DEPARTMENT OF SANITATION OF THE CITY OF NEW YORK and JOSEPH CIAPPA, Respondents.
To: Daniel Shimko, Esq. Attorney for Petitioner Salem & Shimko, P.C. 446 Avenue P Brooklyn, New York 11223 Zachary Carter, Esq. By: Jeffrey Coyne, Esq. Corporation Counsel of the City of New York Attorneys for Respondents 100 Church Street New York, New York 10007
At an IAS Term, Part 7 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn, New York on the 5th day of October, 2015. PRESENT: DECISION & ORDER Recitation, as required by CPLR § 2219(a), of the papers considered:
| Papers Numbered | |
| Order to Show Cause and | |
| Affidavits (Affirmations) Annexed | 1 |
| Opposing Affidavits (Affirmations) | 2 |
| Reply Affidavits (Affirmations) | 3 |
| Other Papers City's Sur-Reply | 4 |
Introduction
Petitioners, John Abbate, by his legal guardian Lisa Dennison, and Lisa Dennison, individually (collectively petitioners), move by notice of petition, sequence number one, dated March 20, 2015, pursuant to General Municipal Law (GML) section 50-e for an order (1) granting petitioners leave to serve and file the late notice of claim; and (2) granting such other and further relief as this Court may deem just and proper. Respondents, the City of New York, the Department of Sanitation of the City of New York and Joseph Ciappa (collectively, respondents) oppose the application.
Background
On July 17, 2014, petitioner John Abbate was employed by the Department of Sanitation of the City of New York (DSNY). He and his partner, Joseph Ciappa (Ciappa), were collecting sanitation at Amherst Street and Oriental Boulevard in Brooklyn, New York.
Reports
In Ciappa's DSNY "Accident Statement" taken by DSNY employee Sparacio on July 22, 2014, he stated that,
WHILE WORKING AMHERST ST. FROM DEAD END TO ORIENTAL BLVD. I WAS DRIVING AND MY PARTNER WAS LOADING. AFTER HE LOADED GARBAGE INTO TRUCK I PROCEEDED TO THE NEXT STOP APPROXIMATELY TWO HOUSES AWAY. I LOOKED IN THE MIRROR TO LOOK FOR MY PARTNER AND DIDN'T SEE HIM. I THEN LOOKED AT SMALL MIRROR AND SAW HIM LAYING ON THE GROUND.(Petition, DSNY Accident Report dated July 22, 2014, Exhibit D).
The DSNY "LODI Unusual Occurrence Report" indicates that 911 was immediately called, Supervisor Robert Daly was notified and he responded to the scene and the Fire Department of New York ambulance transported Abbate to Coney Island Hospital (see Petition, Exhibit B). Deputy Chief James Miglino and District Superintendent Guiseppe Lupo reported to the hospital to check on Abbate. The report further indicated that all DSNY were notified by email. The report stated that Abbate's injures are bleeding from the mouth, ears and vomiting and there was pressure on the brain, possibly due to a fractured skull. The report further provided updates on Abbate's condition from July 17, 2014, through August 2, 2014. The "Update" section dated July 17, 2014, (1600-2400) indicated that the "safety officer is enroute to the hospital". The remainder of the updates primarily indicated that Abbate was in critical but stable condition. The July 25, 2014, update (0800-1600) notes that Abbate is in critical condition due to kidney failure.
A DSNY "Line of Duty Injury Report" and a "Line of Duty Injury/Illness Report" were also prepared (see Petition, Exhibits C and D). Section two of the "Line of Duty Injury Report" report provided a space for the injured employees own description of the incident and statement of first eye witness; these spaces are blank. Section four indicates that the employee is unconscious and unable to answer questions. The "Line of Duty Injury/Illness Report", contained a section labeled "to be filled out by physician". This report was signed on July 18, 2014, by Arthur Shlifer, a physician assistant at the Department of Neurosurgery at Coney Island Hospital. The report, stated that Abbate's complaint is "collapse with head trauma" and a cat scan of the head shows "temporal bone fracture, bilateral subarachnoid hemorrhage, left subdural hematoma". The clinical section of the report further indicated that Abbate is "in a comatose state" and "intubated on a ventilator". The medical diagnosis repeated that Abbate suffered a "bilateral subarachnoid hemorrhage with intracranial pressure".
Video
Petitioners provided video footage of the incident, which occurred on the left side of Amherst Street. This footage is taken from a home security system located on the right side of Amherst Street, across the street from the location of the incident. At the time of the incident, the sanitation truck is collecting sanitation on the left side of the street. This video footage has a view of the right side of the sanitation truck during the incident. Although Abbate is never visible on the left side of Amherst Street, the video provided on unobstructed view of the street, sidewalk and residences well before the incident and continued to record the sanitation truck through the time which the ambulance arrived on the scene.
The video begins at 11:30:00 a.m. Screen 04 depicts a view from the front stoop of the residence across the street from the incident and provides a clear view of the front of the residence where the incident occurred. The camera is located on the right side of the street and the view includes the left side of the street where the incident took place.
Beginning at 11:30:00 a.m., there is a city street lamp located in front of the residence where the incident occurred and there is no garbage visible at the curbside. At 11:52:00 a.m. the sanitation truck pulls onto the block, travelling down the right side of Amherst Street. It stopped at a residence on the right side of Amherst Street where a man, presumed to be Abbate, walked on the curb while the truck proceeded down the right side of the block.
At 12:02:41 p.m. the sanitation truck travelled in the opposite direction, up the left side of the block, now on the side where the incident occurred. At 12:02:47 p.m. the sanitation collection truck abruptly stopped at the scene of the incident. It is clear from the video that Abbate did not walk to the scene of the incident. It is also clear that there was no garbage visible at the curb of the incident. At 12:10:00 p.m. a man, presumably Ciappa, walked around the front of the sanitation truck, climbed briefly into the truck, and then proceed back around to the left side. Thereafter, the ambulance appeared at 12:11:36 p.m.
Guardianship
On February 5, 2015, in the New York State Supreme Court, Kings County action captioned Lisa Dennison v. John Abbate, index number 100343/2014, Dennison testified in relation to her application seeking appointment as Abbate's legal guardian. Dennison testified that she is Abatte's fiancé and domestic partner. Due to the injuries he sustained on July 17, 2014, "[h]e can't talk. [h]e can't walk. [h]e can't feed himself. [h]e's incapacitated." (see Petition, Exhibit E, Transcript dated February 5, 2015, p 4, ll 1-2).
The court evaluator, Elliot Gladstein, testified that,
[f]ollowing numerous life saving surgeries and procedures as it stands today the AIP [Abbate] is unable to walk, talk, move most of his body or tend to or manage any of the activities of his daily living. The AIP's mother Rosalee Abbate and his fiancé Lisa Dennison spend virtually all day everyday by his side and ensure that he receives the best possible care, and the loyalty and dedication and bravery that they demonstrate every single day is extremely admirable and inspiring.(see Petition, Exhibit E, Guardian Proceeding Transcript, February 5, 2015, p 7, ll 2-11). On February 5, 2014, on the record, the Hon. Leon Ruchelsman found that Abbate is incapacitated within the meaning of Article 81 of the Mental Hygiene Law. Dennison was accepted as guardian and given authority to, inter alia, commence litigation related to the injuries sustained in July 2014. Upon review of the Kings County Clerk's minutes, the necessary commission and oath and designation were filed on April 1, 2015.
Petitioners' Contentions
Petitioners contend that the notice of claim was not served within the statutory 90-day period due to Abbate's physical incapacity. They further contend that the DSNY was promptly notified of the accident, and it was fully investigated and documented. Ciappa, Abbate's partner and the driver on the day of the incident, was the only witness and was questioned by the DSNY. Petitioners aver that "Abbate's head trauma can only be explained by an extreme impact from an external force, and not a mere fall." Petitioners contend that since Abbate was only visible to the driver in the small mirror which provides a wide view of the side of the truck's blind spot, the incident must be due to Ciappa's negligent operation of the truck. Accordingly, petitioner seeks leave to serve a late notice of claim.
Petitioner states that a notice of claim was filed on February 21, 2012, and an amended notice of claim was served on March 7, 2012. Inasmuch as this incident occurred on July 17, 2014, and the application herein is for leave to serve a late notice of claim, this Court can only surmise that this statement is made in error.
Respondents' Contentions
Respondents contend that the notice of claim is approximately five months late. They stated that "the petition should be denied as there is no reasonable excuse for the delay and the respondents, while having notice of Abbate's injury, did not have notice of the claim or any evidence of contact between the sanitation vehicle and Mr. Abbate". Respondents further contend that Dennison could have served the notice of claim at any time after July 17, 2014. Respondents aver that they did not have actual knowledge of the essential facts constituting the claim. They stated that the investigation records show only that the City investigated an occurrence and uncovered no facts that underlie or support a legal theory or claim for negligence. The City further contends that the petitioners have not demonstrated that the City is not prejudiced in maintaining their defense, because they did not have knowledge of a motor vehicle accident, and they cannot be expected "to attempt to reconstruct the events surrounding an alleged motor vehicle accident" given the passage of time. Lastly, the City contends that the application must be denied because it is meritless and based on speculation. Counsel for respondents stated, "[p]etitioners' counsel is engaging in a factually-unsupported theory tailored to produce a desired end result, i.e., a potentially viable lawsuit. However, absent anything in the investigation evidencing a motor vehicle accident, petitioners' theory is nothing more than meritless speculation." (see City's Affirmation in Opposition, May 18, 2015, paragraph 18).
Discussion
Meritless Claim
Respondents, by way of opposition, request that this Court take the extraordinary step to examine the merits of petitioners underlying claims in this application for leave to serve a late notice of claim. Typically, "[t]he merits of a claim are not examined on a motion for leave to serve a late notice of claim [internal citations omitted]. However, permission to serve a late notice of claim is properly denied where the underlying claim is 'patently meritless'" (Matter of Diamond Ella McKenzie Regan, v. City of New York, -- A.D.3d --; 2015 WL 5436835 [2 Dept., 2015], citing Catherine G. v. County of Essex, 3 N.Y.3d 175, 785 N.Y.S.2d 369 [2004]; see also Matter of Allende v. City of New York, 69 A.D.3d 931, 894 N.Y.S.2d 472 [2 Dept., 2010]; Besedina v. NYCTA, 47 A.D.3d 924, 850 N.Y.S.2d 199 [2 Dept., 2008]).
In the instant matter, this Court rejects respondents' contention that the sanitation truck never made contact with Abbate. A review of the video footage demonstrates that Abbate did not walk to the scene of the incident; for 32 minutes before the sanitation truck abruptly stopped in front of the residence, the video shows that no sanitation employee walked on the left side of Amherst Street, in the vicinity of the residence. Although Abbate was not visible on the truck in the video, the footage depicts the scene from the vantage point of a home on the right side of the street, and Abbate was collecting garbage on the left side of the street. This suggests that Abbate, the loader, was holding onto the left side of the sanitation truck at the time of the incident.
The DSNY records stated that Abbate suffered a bilateral hemorrhage. Bilateral indicates both sides, which suggests a possible crushing of Abbate's head rather than a mere fall. Considering plaintiff's bilateral injuries, in combination with (1) the location where a sanitation loader typically holds on to the rear panel of the sanitation truck; (2) the rear panel's proximity to the City lamp post at the time the truck stopped; (3) the truck's abrupt stop at a residence where no sanitation was visible at the curbside; and (4) the video does not show Abbate walking to the scene of the accident, the facts and circumstances of this case refute the City's contention that petitioners' claim is patently meritless. Upon the completion of discovery, the merit or the lack thereof, is more properly the subject of a motion for summary judgment or for a jury.
GML§ 50-e
GML section 50-e requires the service of a notice of claim within 90 days after accrual of the claim. This is a condition precedent to the commencement of a tort action against the City of New York or a public corporation (see GML 50-e; see also Cassidy v. Riverhead Sch. Dist., 128 A.D.3d 996, 11 N.Y.S.3d 102 [2 Dept., 2015]; see also Decoteau v. City of New York, 97 A.D.3d 527, 947 N.Y.S.2d 343 [2 Dept., 2012]). "The determination to grant leave to serve a late notice of claim lies within the sound discretion of the Supreme Court" (Barrett v. Vill. Of Wappingers Falls, 130 A.D.3d 817, 12 N.Y.S.3d 577 [2 Dept., 2015]; see Nurena v. Westchester Cnty., 120 A.D.3d 781, 992 N.Y.S.2d 86 [2 Dept., 2014]). However, a claimant must petition for leave to serve a late notice of claim, or to deem a notice of claim timely served nunc pro tunc, within one (1) year and 90 days from the date which the claim accrued, otherwise it is barred by the statute of limitations (see GML 50-e[5]; Feliciano v. New York City Hous. Auth., 123 A.D.3d 876, 999 N.Y.S.2d 456 [2 Dept., 2014]; Alvarez v. New York City Hous. Auth., 97 A.D.3d 668, 948 N.Y.S.2d 648 [2 Dept., 2012]).
Here, petitioners' claims accrued on July 17, 2014, when Abbate was injured while working as the sanitation truck loader. Pursuant to GML § 50-e, petitioners' time to serve a notice of claim expired 90 days later, on October 16, 2014. This application was brought on March 11, 2015, which is nearly five months (146 days) after the expiration of petitioner's statutory time to file a notice of claim and just over one month (34 days) after Dennison was appointed legal guardian. It is not disputed that this application was brought before the statute of limitations expired. At issue is whether this Court should grant petitioners' application for leave to file a late notice of claim.
The City's affirmation in opposition at paragraph 4 indicates that they were served the application herein on March 11, 2015. The court copy of the motion is date stamped March 20, 2015.
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 all relevant circumstances, including whether (1) 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, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits (see General Municipal Law § 50-e[5]; Matter of Destine v. City of New York, 111 A.D.3d 629, 974 N.Y.S.2d 123; Platt v. New York City Health & Hosps. Corp., 105 A.D.3d 1026, 1027, 964 N.Y.S.2d 223; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 147, 851 N.Y.S.2d 218; Matter of Acosta v. City of New York, 39 A.D.3d 629, 630, 834 N.Y.S.2d 267).(Rojas v. New York City Health and Hosp. Corp., 127 A.D.3d 870, 6 N.Y.S.3d 294 [2 Dept., 2015]).
"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" (see id, citing Matter of Iacone v. Town of Hempstead, 82 A.D.3d 888, 918 N.Y.S.2d 202 [2 Dept., 2011]; see also Barrett v. Vill. of Wappingers Falls, 130 A.D.3d 817, supra).
Incompetency and Reasonable Excuse
GML section 50-e permits, upon application, the court, in its discretion, to extend the time to serve a notice. "The court shall . . . consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim" (GML 50-e [5]).
Where a petitioner adequately demonstrates that the delay in serving a notice of claim was directly attributable to a medical condition or physical incapacitation, it can constitute a reasonable excuse for the delay (see Lopez v. Cnty. of Nassau, 120 A.D.3d 688, 990 N.Y.S.2d 886 [2 Dept., 2014]; Levin v. County of Westchester, 91 A.D.3d 646, 936 N.Y.S.2d 269 [2 Dept., 2012]; Matter of Haeg v. County of Suffolk, 30 A.D.3d 519 [2 Dept., 2006] [where "petitioner sustained traumatic injuries which required surgery and continuous hospitalization for medical care and rehabilitation"]; DeMolfetto v. City of New York, 216 A.D.2d 295 [2 Dept., 1995] [where "[t]he record demonstrates that the petitioner sustained serious head injuries as a result of the accident which required surgery and a lengthy rehabilitative process"]; see also Matter of Hubbard v. County of Madison, 71 A.D.3d 1313 [3 Dept., 2010] [where petitioner "remains nonverbal and requires constant care for the profound physical and mental disabilities sustained because of the accident"]; cf Gunsam v. E. Suffolk Bd. of Co-op. Educ. Servs., 109 A.D.3d 542, 970 N.Y.S.2d 587 [2 Dept., 2013]).
In the instant case, it is unrefuted that the plaintiff was physically incapacitated as a result of this accident. Petitioners adequately demonstrated that the delay was attributable to petitioner's physical incapacity by submission of the Line of Duty Injury Report, which includes a section from Physician Assistant Arthur Shlifer, who indicated that Abbate is, among other things, in a comatose state. Furthermore, the party of interest herein, Abbate, was declared incompetent by the Hon. Leon Ruchelsman on February 5, 2015. Petitioners attached the transcript of the guardianship hearing before Justice Ruchelsman in support of their contention. It is undisputed that since the date of the incident, July 17, 2014, Abbate was either in a comatose state, or awake but unable to walk, talk or feed himself. He requires full time care and currently resides at a nursing facility. This application for leave to file a late notice of claim was brought only 36 days after Dennison was appointed as Abbate's guardian by Justice Ruchelsman.
The City's contention that anyone could have filed the notice of claim, although theoretically accurate, is misguided herein. This Court recognizes that there are no statutory constraints as to whom may file a notice of claim, nor is there an issue of standing. However, the fact that another individual did not file a notice of claim for the petitioner should in no way prejudice that petitioner's interest or the analysis of the petitioner's reasonable excuse. Stated another way, there is no statutory restriction preventing Abbate's fiancé from filing a timely notice of claim, but her failure to file a notice of claim on his behalf, certainly prior to her appointment as his legal guardian, does not preclude his application herein or an analysis of his reasonable excuse (see Rosenberg v. City of New York, 309 N.Y. 304 130 N.E.2d 629 [1955] ["There is nothing in the statute which states that a husband, brother, cousin, friend or other person must attend to the serving of a notice of claim if the injured person is incapacitated from doing so. In appellant's case, vicarious service of notice of claim within the year was at most permissive but not mandatory"]; see also Trakis v. City of New York, 56 N.Y.2d 1018, 439 N.E.2d 357 [1982] ["it was improper for Special Term to deny claimant James Trakis' application on the basis of his wife's ability to file a notice of claim on his behalf"]).
Petitioners adequately demonstrated that Abbate's physical incapacity was directly attributable to the delay in filing a notice of claim, therefore this Court finds that the petitioners had a reasonable excuse for the delay.
Actual Knowledge
In determining whether to extend the time to serve a notice of claim, the court considers whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within 90-days or a reasonable time thereafter (see GML 50-e). When determining if a public corporation has acquired actual knowledge, the Appellate Division, Second Department considers whether the public corporation received actual knowledge of the essential facts constituting the claim, and not merely general knowledge that a wrong has been committed (see Arias v. New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 A.D.3d 830, 855 N.Y.S.2d 265 [2 Dept., 2008], citing Sica v. Board of Educ., 226 A.D.2d 542, 640 N.Y.S.2d 610 [2 Dept., 1996]). "Actual knowledge of the essential facts underlying the claim means 'knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the [proposed] notice of claim; the public corporation need not have specific notice of the theory or theories themselves'" (Hampson v. Connetquot Cent. Sch. Dist., 114 A.D.3d 790, supra).
In the instant case, petitioners demonstrate that respondents had actual knowledge within 90 days or a "reasonable time thereafter". Petitioners contend that defendants' acquired actual knowledge within the 90-day statutory period through the following reports which were generated by the DOS: (1) the City of New York Department of Sanitation LODI Unusual Occurrence Report, prepared contemporaneous with the incident; (2) the City of New York Department of Sanitation Line of Duty Injury Report, dated the day after the incident; and (3) the City of New York Department of Sanitation Accident Statement, dated four days after the incident.
The contention that a defendant acquires actual knowledge of a claim "solely on the basis of the allegation that its employee was directly involved in the accident, without more, such as a report or record demonstrating that the respondent acquired actual knowledge of the essential facts constituting the claim, is without merit" (Thill v. N. Shore Cent. Sch. Dist., 128 A.D.3d 976, 10 N.Y.S.3d 144 [2 Dept., 2015]). "[F]or a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation" (Kuterman v. City of New York, 121 A.D.3d 646, 993 N.Y.S.3d 361 [2 Dept., 2014]; see also Thompson v. City of New York, 95 A.D.3d 1024, 943 N.Y.S.2d 769 [2 Dept., 2012]). "A report which describes the circumstances of the accident without making a connection between the petitioner's injuries and negligent conduct on the part of the public corporation will not be sufficient to constitute actual notice of the essential facts constituting the claim" (Thill v. N. Shore Cent. Sch. Dist., 128 A.D.3d 976, supra; see also Quinn v. Wallkill Cent. Sch. Dist. Bd. of Educ., -- A.D.3d --, 2015 WL 5436855 [2 Dept., 2015]).
In the instant case, petitioners did not bring this application for leave to file a late notice of claim until nearly five months after the expiration of the 90-day statutory period. However, "the overall circumstances of this matter support an inference that the City effectively received actual notice of the essential facts constituting the claim" well within the 90-day statutory period (St. Paul Guardian Ins. Corp. v. Pocatello Fire Dist., 90 A.D.3d 761, 935 N.Y.S.2d 43 [2 Dept., 2011]; see also Bakioglu v. Tornabene, 117 A.D.3d 658, 985 N.Y.S.2d 270 [2 Dept., 2014]).
Municipal employees were directly involved in the matter and an investigation was promptly conducted. Further, multiple reports were generated from this investigation within mere days of the incident. These reports described the circumstances of the incident, identified the employees involved, interviewed the driver and detailed Abbate's extensive injuries which resulted from the incident. Given the location of the vehicle at the time of the incident and the bilateral subarachnoid hemorrhage suffered, one could infer from these reports that a potentially actionable wrong was committed by the public corporation (see Kuterman v. City of New York, 121 A.D.3d 646, supra). "Any failure to further inquire is not attributable to the late filing of the notice of claim" (Kellman v. Hauppauge Union Free Sch. Dist., 120 A.D.3d 634, supra, citing Apgar ex rel. Apgar v. Waverly Cent. Sch. Dist., 36 A.D.3d 1113, 828 N.Y.S.2d 652 [2 Dept., 2007]).
Further, this Court notes that although the instant application was brought over five months after expiration of the 90-day period, it was brought only 34 days after Dennison was appointed as Abbate's legal guardian. Inasmuch as DSNY employees were involved in the accident and multiple reports were generated as a result of their investigation conducted, and the only verbal witness was interviewed contemporaneous with the incident, petitioners sufficiently demonstrated that respondents acquired actual knowledge of the essential facts constituting the claim within the 90-day statutory period.
Substantial Prejudice
The purpose of the notice of claim requirement is to protect public corporations against stale claims and to give them an opportunity to timely and efficiently investigate tort claims (see generally Felice v. Eastport/S. Manor Cent. Sch. Dist., 50 A.D.3d 138, supra; see also Peterson v. New York City Dep't of Envtl. Prot., 66 A.D.3d 1027, 887 N.Y.S.2d 269 [2 Dept., 2009]). It is the presumption that the delay prejudices the municipality unless proven otherwise; plaintiff has the burden of proof (see Nurena v. Westchester Cnty., 120 A.D.3d 781, 992 N.Y.S.2d 86 [2 Dept., 2014]). "Proof that the defendant had actual knowledge is an important factor in determining whether the defendant is substantially prejudiced by such a delay" (Wade v. New York City Health and Hospitals Corp., 85 A.D.3d 1016, 925 N.Y.S.2d 630 [2 Dept., 2011], quoting Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 814 N.Y.S.2d 580 [2006]).
Under the circumstances of this case, respondents acquired actual knowledge of the essential facts constituting the claim within 90 days after the incident. Thus, petitioners met their burden rebutting the presumption that the delay prejudices the municipality (see Fox v. New York City Dep't of Educ., 124 A.D.3d 887, 2 N.Y.S.3d 210 [2 Dept., 2015]; Kellman v. Hauppauge Union Free Sch. Dist., 120 A.D.3d 634, 991 N.Y.S.2d 128 [2 Dept., 2014]; Fennell v. City Sch. Dist. of City of Long Beach, 118 A.D.3d 783, 987 N.Y.S.2d 442 [2 Dept., 2014]). Respondents' conclusory assertion that they will be unable to fully investigate the petitioners' claim as it relates to a motor vehicle accident due to the passage of time was insufficient to overcome petitioners' showing of lack of substantial prejudice (see Allende v. City of New York, 69 A.D.3d 931, 894 N.Y.S.2d 472 [2 Dept., 2010]; see also Leeds v. Port Washington Union Free Sch. Dist ., 55 A.D.3d 734, 865 N.Y.S.2d 349 [2 Dept., 2008]). Respondents "presented no evidence that any of the defendants' employees or other witnesses are unavailable to be interviewed and questioned in connection with the accident." (Kellman v. Hauppauge Union Free Sch. Dist., 120 A.D.3d 634, supra).
In this case, petitioners allege that the negligent driving of the sanitation truck, while petitioner was on the truck, caused petitioner's fractured temporal. Any alleged prejudice to the respondents is undermined by reason of DSNY's presence on scene of the accident and their immediate investigation, which included interviewing the only verbal witness, their driver, and documenting the petitioner's injury and his progress. This investigation culminated in the following reports prepared by DSNY: (1) the City of New York Department of Sanitation LODI Unusual Occurrence Report prepared contemporaneous with the incident; (2) the City of New York Department of Sanitation Line of Duty Injury Report dated the day after the incident; and (3) the City of New York Department of Sanitation Accident Statement dated four days after the incident.
Furthermore, respondents' contention that they would have conducted a different investigation if they had knowledge of the motor vehicle accident theory is without merit. The nature of the allegation, a one vehicle accident with no additional witness, is such that the respondents would have been unable to investigate any further even if the notice of claim was served within the prescribed statutory period (see Mounsey v. City of New York, 68 A.D.3d 998, 891 N.Y.S.2d 440 [2 Dept., 2009], citing Caridi v. New York Convention Center Operating Corp., 47 A.D.3d 526, 849 N.Y.S.2d 261 ). Lastly, petitioner provided a video of the incident. Although this video does not show Abbate, it reveals that there were no witnesses present at the time of the incident other than the DSNY employees. It also shows that Abbate did not walk to the scene of the incident which indicates that he must have been holding on to the left side of the sanitation truck as it drove up. The video also shows that the sanitation truck stopped in front of the City lamp post. This Court notes that a lamp post is not transitory in nature, and respondents are not precluded from conducting further investigations of the scene, at present.
Conclusion
In determining whether to grant an application for leave to deem a notice of claim served timely nunc pro tunc, GML section 50-e requires the court to consider all relevant facts and circumstances of the matter. This determination lies within the sound discretion of the Supreme Court (see Barrett v. Vill. of Wappingers Falls, 130 A.D.3d 817, supra). In this case, petitioners provided a reasonable excuse for the delay in filing, demonstrated that respondents acquired actual knowledge of the essential facts constituting the claim within the 90-day statutory period, and met their burden of proving lack of substantial prejudice. Accordingly, petitioners' application for leave to serve a late notice of claim is granted in its entirety.
The foregoing constitutes the decision and order of this Court.
ENTER:
/s/_________
Hon. Lara J. Genovesi
J.S.C.
To: Daniel Shimko, Esq.
Attorney for Petitioner
Salem & Shimko, P.C.
446 Avenue P
Brooklyn, New York 11223
Zachary Carter, Esq.
By: Jeffrey Coyne, Esq.
Corporation Counsel of the City of New York
Attorneys for Respondents
100 Church Street
New York, New York 10007