Opinion
No. 501976/2016.
08-30-2017
In the Matter of the Application of Brian COSTELLO, Petitioner, For Leave to Serve and File Late Notice of Claim v. The CITY OF NEW YORK, Respondent.
Decolator, Cohen & Diprisco, LLP, Garden City, Attorney for Petitioner. Zachary W. Carter, Corporation Counsel for the City of New York, Brooklyn, Attorney for Respondent City of New York.
Decolator, Cohen & Diprisco, LLP, Garden City, Attorney for Petitioner.
Zachary W. Carter, Corporation Counsel for the City of New York, Brooklyn, Attorney for Respondent City of New York.
KATHERINE A. LEVINE, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
| Papers/Numbered | |
|---|---|
| Petitioner's Notice of Petition with Accompanying Affidavits and Exhibits | 1 |
| Respondent City's Affirmation in Opposition | 2 |
| Petitioner's Reply Affirmation | 3 |
| Petitioner's Memorandum of Law | 4 |
Petitioner Brian Costello ("petitioner" or "Costello"), a NYC Police Officer, seeks leave to file a late notice of claim pursuant to General Municipal Law § 50–e, but does not offer any excuse for his lateness. For the reasons set forth below, his application is denied.
In his proposed notice of claim, petitioner seeks damages from the City of New York (the "City" or "respondent") for injuries he allegedly sustained on July 19, 2015, when the police vehicle in which he was a recorder was struck in the rear by another motor vehicle. As a result of the incident, petitioner's left knee bumped into an unpadded computer bracket in the police vehicle. His complaint avers that the City was negligent in its "ownership, operation, maintenance, supervision and repair of a police vehicle," in that it failed to provide shock absorbing padding around the computer bracket in the vehicle. He further claims that the City failed to warn him and to provide a crash-worthy vehicle and safe work environment.
On February 18, 2016, Costello petitioned for leave to serve a late notice of claim and, in support thereof, submitted a Police Accident Report ("Accident Report"), Line–of–Duty Injury ("LODI") Report, and an unsworn statement from another police officer who allegedly witnessed the incident, all of which were purportedly filed with the Police Department at the time of the incident. Petitioner does not proffer any excuse for his lateness but claims that he is entitled to file a late notice of claim since the City timely acquired actual knowledge of the facts underlying his claim and will not be prejudiced. In particular, petitioner claims that the aforementioned reports timely provided the City with actual knowledge, and that the City would not suffer any prejudice because the City employee who witnessed the incident is available to be interviewed or deposed.
Pursuant to General Municipal Law ("GML") § 50–i(a), no personal injury action may be commenced against the City unless a notice of claim was served upon the City within 90 days after the subject claim arose. A notice of claim must state "the time when, the place where and the manner in which the claim arose." General Municipal Law § 50–e(2). The purpose of the statutory notice of claim requirement is to afford the City adequate opportunity to promptly investigate, collect and preserve evidence, and evaluate the merit of a claim while information is still readily available. Brown v. City of New York, 95 N.Y.2d 389, 392 (2000) ; Beary v. Rye, 44 N.Y.2d 398, 412 (1978) ; Bowers v. City of New York, 147 AD3d 894, 895 (2d Dep't 2017). General Municipal Law § 50–e(5) grants the court discretion to extend the time permitted for filing a late notice of claim.
A court's decision on an application to serve a late notice of claim is "purely discretionary." Mtr. of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 465 (2016). The court must consider, "in particular," whether the City acquired "actual knowledge" of the essential facts constituting the claim within 90 days after it arose or within a reasonable time thereafter. GML § 50–e(5). In order to have "actual knowledge," the City must have knowledge of the facts that underlie the legal theory upon which liability is predicated in the proposed notice of claim. Mtr. of GEICO v. Suffolk County Police Dept., 2017 N.Y. Slip Op 05436, 2017 N.Y.App. Div. LEXIS 5272 (2d Dep't 2017) ; Mtr. of Fethallah v. New York City Police Dept., 150 AD3d 998, 1000 (2d Dep't 2017) ; Grande v. City of New York, 48 AD3d 565, 566 (2d Dep't 2008). The court must also consider "other relevant facts and circumstances," including whether the petitioner has demonstrated a reasonable excuse for the failure to serve a timely notice of claim and whether the delay would substantially prejudice the City in its defense. Mtr. of Maldonado v. City of New York, 2017 N.Y. Slip Op 05440, 2017 N.Y.App. Div. LEXIS 5279, 1–2 (2d Dep't 2017).
However, the courts accord greatest "importance" and "weight" to whether the City acquired timely actual knowledge. Mtr. of D.M. v. Center Moriches Union Free Sch. Dist., 151 AD3d 970, 971 (2d Dep't 2017) ; Mtr. of Jaffier v. City of New York, 148 AD3d 1021, 1022 (2d Dep't 2017) ; Kennedy v. Oswego City School Dist., 148 AD3d 1790 (4th Dep't 2017) ; Kellman v. Hauppauge Union Free School Dist., 120 AD3d 634, 635 (2d Dep't 2014). Indeed, when a petitioner has demonstrated that the City acquired timely knowledge of the essential facts of the claim, this establishes lack of prejudice to the City regardless of the other two factors. Mtr. of Jaffier, supra, 148 AD3d at 1023 ; Jordan v. City of New York, 41 AD3d 658, 660 (2d Dep't 2007).
The Accident Report, LODI Report, and witness' statement were insufficient to provide actual knowledge of the facts upon which the City's alleged liability is predicated in the notice of claim. The Accident Report makes no mention of the facts upon which petitioner's theory of liability is predicated; there is no indication that the police vehicle was unsafe or negligently maintained, or that petitioner was injured. See, Mtr. of Cuccia v. Metropolitan Transp. Auth., 150 AD3d 849, 850 (2d Dep't 2017) (Police accident report did not provide actual notice of facts constituting the petitioner's claim that she sustained serious injuries as a result of the MTA's negligence since no injuries were reported); Mtr. of Thill v. North Shore Cent. Sch. Dist., 128 AD3d 976 (2d Dep't 2015) (Report which describes circumstances of accident without making connection between the petitioner's injuries and alleged negligent conduct of public corporation insufficient to constitute actual notice). Accordingly, petitioner failed to establish that the City acquired timely actual knowledge from the Accident Report.
The LODI Report similarly was insufficient to provide the City with timely actual knowledge. In order for 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." Mtr. of Fethallah, supra, 150 AD3d at 1000 ; Mtr. of Clark v. City of New York, 139 AD3d 849, 850 (2d Dep't 2016). The LODI states: "PO Costello as recorder, was responding ... to assist UMOs in pursuit of male on foot believed to possess a firearm ... Operator in vehicle behind the RMP was following too closely and struck the RMP from behind. PO Costello complained of pain to his left forearm and left knee." This report merely indicates that petitioner was injured and makes no reference to the unpadded computer bracket which is the predicate for Costello's claim that the City was negligent and provided an unsafe work environment. Accordingly, the LODI Report was insufficient to provide actual knowledge to the City. See, Mtr. Of Clark, supra, 139 AD3d at 850 (LODI report filed with Police Department shortly after incident did not provide the City with actual knowledge of essential facts constituting the petitioner's claim that the City was negligent in maintenance of a bench upon which the petitioner was sitting when it collapsed); See also, Mtr. Of Catuosco v. City of New York, 62 AD3d 995, 996 (2d Dep't 2009) (LODI report insufficient to provide City with actual knowledge where it merely indicated that the petitioner was injured when he attempted to grab a handrail to prevent himself from falling down the stairs, but made no reference to the alleged presence of sand on the stairs or poor lighting conditions, which was the alleged basis for the petitioner's negligence claim).
The statement of P.O. Casimir ("Witness' Statement"), purportedly written on date of the incident, was also insufficient to provide the City with actual knowledge that a potentially actionable wrong had been committed by the City. It states as follows: "While responding to assist ... in foot pursuit of a male with a firearm ... was struck by a vehicle following too closely. I observed PO Costello slammed forward from impact striking his left knee and left forearm on the metal bracket of the MDT. I observed P.O. Costello with bleeding and swelling to his left knee and bruising to his left forearm." This statement was insufficient since it made no mention that the equipment in the police vehicle was defective or that the City negligently maintained the vehicle or its equipment. See, Mtr. of Maldonado, supra, 2017 N.Y.App. Div. LEXIS 5279, at 2–3 (Report insufficient to provide actual knowledge because it merely indicated that the petitioner was injured when his left foot got stuck in the grate of the step as he was descending a spreader but made no mention of the claim that step grate was defective and that the City negligently maintained the sanitation vehicle). Furthermore, the Witness' Statement is unsworn and therefore cannot be relied upon. See, Utica First Ins. Co. v. Gristmill Earth Realty Corp., 145 AD3d 1059, 1062 (2d Dep't 2016) (Unsworn fire investigation reports insufficient to raise a triable issue of fact); Lovell v. Thompson, 143 AD3d 511 (1st Dep't 2016) (Motion court not required to consider unsworn witness statement since it was the only evidence submitted on issue of whether the respondent had notice of the alleged defect in the construction of their stairs, and it was not probative); Moore v. 3 Phase Equestrian Ctr., Inc., 83 AD3d 677, 679 (2d Dep't 2011) (Unsworn witness statements insufficient to raise a triable issue of fact). Therefore, petitioner has not established the City was afforded actual knowledge.
However, this Court finds that petitioner has made a showing that the City will not be substantially prejudiced. A petitioner seeking to file a late notice of claim has the initial burden to show that the City will not be substantially prejudiced by the delay, and then the city must rebut that showing with particularized evidence that it has been substantially prejudiced. Mtr. of Newcomb, supra, 28 NY3d at 467–468. A petitioner's initial showing need not be extensive but "must present some evidence or plausible argument that supports a finding of no substantial prejudice." Id. In general, the City's lack of actual knowledge of the facts underlying a petitioner's claim weighs against finding that there is no prejudice to the City. Williams v. Nassau County Med. Ctr., 6 NY3d 531, 539 (2006) ; Plaza v. New York Health & Hosps. Corp. (Jacobi Med. Ctr.), 97 AD3d 466, 471 (1st Dep't 2012) ; Wade v. New York City Health & Hosps. Corp., 85 AD3d 1016, 1018 (2d Dep't 2011) ; Mauro v. City of New York, 2008 N.Y. Slip Op 31890(U), 2008 N.Y. Misc. LEXIS 10035 (Sup.Ct. N.Y. Co.2008).
The most important factor in determining prejudice is whether there is physical evidence or authenticated photographs taken on the date of the incident, which are currently available for inspection, or whether there are witnesses to the incident who could testify or be deposed. These factors would permit the City to reconstruct the conditions on the date of the incident. See, Mtr. of Newcomb, supra, 28 NY3d at 466–467 (Photographs from police file, which documented size and placement of allegedly negligently placed sign on roadway, would permit school district to reconstruct conditions on date of incident, and were sufficient to meet the petitioner's initial burden of establishing lack of substantial prejudice); Mtr. of Minkowicz v. City of New York, 100 AD3d 1000, 1000–1001 (2d Dep't 2012) (Petitioner failed to establish that late notice of claim would not substantially prejudice City in maintaining its defense on the merits, given transient nature of the pothole in the street over which the petitioner allegedly tripped and fell); Alvarez v. New York City Health & Hosps. Corp. (North Cent. Bronx Hosp.), 101 AD3d 464 (1st Dep't 2012) (Lack of substantial prejudice established where hospital records, which evidenced an investigation into the cause of the plaintiff's condition, provided "an extensive paper trail and preserved all of the essential facts relating to this claim").
Petitioner advances three arguments to support its contention that the City will not be substantially prejudiced. He first argues that since the Police Department investigated the underlying incident on the day it occurred, the City would not be prejudiced in its ability to investigate and present its defenses. The Court finds this argument to be without merit since the Accident Report, which reports the findings of the police investigation on the date of the incident, makes no mention of the way the police vehicle was constructed or maintained or any defect therein, and therefore, has no bearing on the prejudice issue. He then argues that the City had actual knowledge, which as set forth above, is not the case. Finally, he argues that the incident involved injuries to a City employee and was witnessed by a City employee, and both individuals are still available to be interviewed and deposed. The Court deems this argument to be reasonable since the employees, through their testimony, could potentially reconstruct the facts surrounding the incident. See, Mtr. of Hursala v. Seaford Middle School, 46 AD3d 892, 893 (2d Dep't 2007) ; Mauro, supra. Furthermore, this was not an incident involving a defect in a sidewalk or roadway, or some other alleged transitory condition, and, therefore, the City would not prejudiced by the delay. Mtr. of New Jersey Mfrs. Ins. co. v. City of New York, 2013 N.Y. Slip Op 32487(U), 2013 N.Y. Misc. LEXIS 4657 (Sup.Ct. N.Y. Co.2013). The City fails to rebut this with particularized evidence that it would be substantially prejudiced by the passage of time.
Even assuming that petitioner met his initial burden in showing that the late notice will not substantially prejudice the respondent, and that the City failed to make a particularized evidentiary showing that it will be substantially prejudiced if the late notice is allowed, this Court must still balance all the factors. Mtr. of Shun Mao Ma v. New York City Health & Hosps. Corp., 2017 N.Y.App. Div. LEXIS 5897 (2d Dep't 2017); Rosenblatt v. N.Y. City Health & Hosps. Corp., 149 AD3d 961, 963 (2d Dep't 2017) ; Mtr. of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138 (2d Dep't 2008). The balancing of factors militates against granting petitioner leave to file a late notice of claim since petitioner has failed to proffer a reasonable excuse for failing to serve a timely notice of claim, and the City did not acquire timely actual knowledge of the facts that underlie the legal theory on which the City's liability is allegedly predicated in the proposed notice of claim. Accordingly, P.O. Costello's petition for leave to file a late notice of claim is denied.
This constitutes the Decision and Order of the Court.