Opinion
373 CA 16-01466.
03-31-2017
Walter KENNEDY, Claimant–Appellant, v. OSWEGO CITY SCHOOL DISTRICT, Respondent–Respondent.
Kenny & Kenny, PLLC, Syracuse (Michael P. Kenny of Counsel), for Claimant–Appellant. The Law Firm of Frank W. Miller, East Syracuse (Christopher M. Militello of Counsel), for Respondent–Respondent.
Kenny & Kenny, PLLC, Syracuse (Michael P. Kenny of Counsel), for Claimant–Appellant.
The Law Firm of Frank W. Miller, East Syracuse (Christopher M. Militello of Counsel), for Respondent–Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:
Claimant appeals from an order that, inter alia, denied his application for leave to serve a late notice of claim against respondent pursuant to General Municipal Law § 50–e(5) for violations of the Labor Law. We reject claimant's contention that Supreme Court erred in denying the application.
"In determining whether to grant such leave, the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality" (Matter of Friend v. Town of W. Seneca, 71 A.D.3d 1406, 1407, 895 N.Y.S.2d 895 ; see generally General Municipal Law § 50–e[5] ; Education Law § 3813[2–a] ). "Absent a clear abuse of the court's broad discretion, the determination of an application for leave to serve a late notice of claim will not be disturbed" (Dalton v. Akron Cent. Schs., 107 A.D.3d 1517, 1518, 966 N.Y.S.2d 787, affd. 22 N.Y.3d 1000, 979 N.Y.S.2d 559, 2 N.E.3d 928 [internal quotation marks omitted] ).
Here, claimant failed to establish that respondent had actual knowledge of the essential facts constituting the claim within the requisite time period (see Folmar v. Lewiston–Porter Cent. Sch. Dist., 85 A.D.3d 1644, 1645, 925 N.Y.S.2d 730 ), which is a factor "that should be accorded great weight in determining whether leave to serve a late notice of claim should be granted" (Santana v. Western Regional Off–Track Betting Corp., 2 A.D.3d 1304, 1304, 770 N.Y.S.2d 258, lv. denied 2 N.Y.3d 704, 778 N.Y.S.2d 774, 811 N.E.2d 36 ; see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 535, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ; Matter of Turlington v. Brockport Cent. Sch. Dist., 143 A.D.3d 1247, 1248, 39 N.Y.S.3d 338 ). Contrary to claimant's contention, the accident report prepared by claimant's employer and purportedly received by the construction manager for the school project on which claimant was injured did not impute to respondent the requisite actual knowledge inasmuch as the evidence in the record failed to establish that the construction manager was an agent of respondent (see Matter of Casale v. City of New York, 95 A.D.3d 744, 745, 945 N.Y.S.2d 92 ; see also Mehra v. City of New York, 112 A.D.3d 417, 418, 976 N.Y.S.2d 55 ). In any event, even assuming, arguendo, that the construction manager was respondent's agent and timely received the accident report, we conclude that the report was insufficient to provide respondent with actual knowledge of the essential facts constituting the claim inasmuch as it described the underlying occurrence and claimant's injuries in general terms and made no connection between the accident and any liability on the part of respondent (see Matter of Jin Gak Kim v. Dormitory Auth. of the State of N.Y., 140 A.D.3d 1459, 1460–1461, 34 N.Y.S.3d 686 ; Matter of Fernandez v. City of New York, 131 A.D.3d 532, 533, 15 N.Y.S.3d 166 ; Mehra, 112 A.D.3d at 418, 976 N.Y.S.2d 55 ; Matter of Kliment v. City of Syracuse, 294 A.D.2d 944, 945, 741 N.Y.S.2d 819 ). "Respondent's knowledge of the accident and the injury, without more, does not constitute actual knowledge of the essential facts constituting the claim" (Folmar, 85 A.D.3d at 1645, 925 N.Y.S.2d 730 [internal quotation marks omitted] ). Moreover, "[w]hile the record reveals that certain of respondent's employees had been generally alerted [at a project meeting] that a [worker] injured himself on the job, no details or specifics of the accident or the extent of injuries were given or known such that it could be fairly stated that respondent ‘acquired actual knowledge of the essential facts constituting the claim’ ... within a reasonable time of the accident" (Matter of Smith v. Otselic Val. Cent. Sch. Dist., 302 A.D.2d 665, 666, 754 N.Y.S.2d 734 ). With respect to claimant's excuse for the delay, we conclude that, even if he was "initially unaware of the severity of his injuries, he did not seek leave to serve a late notice of claim until [nearly seven] months after he underwent surgery, and he failed to offer a reasonable excuse for the postsurgery delay" (Friend, 71 A.D.3d at 1407, 895 N.Y.S.2d 895 ; see Mehra, 112 A.D.3d at 418, 976 N.Y.S.2d 55 ). Claimant's further excuse that his ability to ascertain that respondent could be liable was impaired by respondent's allegedly inadequate initial responses to his Freedom of Information Law (FOIL) requests is unavailing here, inasmuch as claimant failed to explain how any FOIL responses were necessary to discover that respondent, the known owner of the school, was potentially liable for violations of the Labor Law (cf. Matter of Rivera v. City of New York, 127 A.D.3d 445, 445–446, 8 N.Y.S.3d 43 ; see generally Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 499–503, 601 N.Y.S.2d 49, 618 N.E.2d 82 ).
We further conclude that claimant failed to meet his initial burden of showing that the late notice will not substantially prejudice respondent's ability to investigate and defend against the claim (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; Matter of D'Agostino v. City of New York, 146 A.D.3d 880, 882, 46 N.Y.S.3d 635 ). Thus, under the circumstances of this case, we cannot conclude that there was a clear abuse of the court's broad discretion in denying claimant's application.
Finally, we reject claimant's contention that respondent should be equitably estopped from relying on General Municipal Law § 50–e based upon its allegedly inadequate initial FOIL responses. Here, "there is no evidence that [respondent] engaged in any improper conduct dissuading [claimant] from serving a timely notice of claim" (Putrelo Constr. Co. v. Town of Marcy, 105 A.D.3d 1406, 1408, 964 N.Y.S.2d 812 ; see Glasheen v. Valera, 116 A.D.3d 505, 505–506, 984 N.Y.S.2d 25 ) and, in any event, claimant's purported reliance upon the FOIL responses in delaying the notice of claim was not justifiable under the circumstances (see Mohl v. Town of Riverhead, 62 A.D.3d 969, 970–971, 880 N.Y.S.2d 313 ; Dowdell v. Greene County, 14 A.D.3d 750, 750–751, 788 N.Y.S.2d 439 ; Wilson v. City of Buffalo, 298 A.D.2d 994, 995–996, 747 N.Y.S.2d 657, lv. denied 99 N.Y.2d 505, 755 N.Y.S.2d 712, 785 N.E.2d 734 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.