Opinion
527012/19
02-20-2020
In the Matter of the Application of Domenico MARANDO, Petitioner, v. The CITY OF NEW YORK, The New York City Transit Authority and the Metropolitan Transit Authority, Respondents.
Attorney for Plaintiff: Liakis Law PC, 65 Broadway, 13th Floor, New York, NY 10006 Attorney for Defendants: Judy Lu, Esq., Cullen and Dykman LLP, 44 Wall Street, 15th Floor, New York, NY 10005
Attorney for Plaintiff: Liakis Law PC, 65 Broadway, 13th Floor, New York, NY 10006
Attorney for Defendants: Judy Lu, Esq., Cullen and Dykman LLP, 44 Wall Street, 15th Floor, New York, NY 10005
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the order to show cause and petition filed on December 11, 2019, under motion sequence number one by Domenico Marando (hereinafter petitioner or Marando) for an order pursuant to Section 50-e of the General Municipal Law granting Marando leave to file a late notice of claim for personal injuries.
Order to show cause
Petition
Affirmation in support
Exhibits A-B
Opposition by the respondents
Exhibit A
BACKGROUND
On December 11, 2019, petitioner commenced the instant special proceeding by electronically filing an order to show cause and petition (hereinafter the commencement papers) with the Kings County Clerk's office.
The petition alleges the following salient facts. On September 26, 2018, at approximately 11:20 AM, Marando, a carpenter employed by Skanska, was renovating the walls of the subway line on the Coney Island bound N-Line train track. At that time and place, an electrical explosion occurred. The force of the blast flung the petitioner ten feet and caused him to sustain multiple physical injuries, including to his neck, right shoulder and left knee. Marando was transported from the scene of the blast to the emergency room of Maimonides Hospital by ambulance. The electrical explosion was so significant that the respondents launched an investigation with Skanska into the surrounding circumstances of the explosion. On October 16, 2018, Marando retained the law office of William D. McGillicuddy, PC to pursue Worker's Compensation benefits due to his employment related injuries. Marando was unaware of the statutory time limits for filing a notice of claim.
Marando claims that the respondents are the owners and operators of the site of the accident, that they were negligent in the ownership, operation, repair and maintenance of the site, and that their negligence caused the explosion and petitioner's injuries.
MOTION PAPERS
Marando's commencement papers include an order to show cause and petition, an affirmation of counsel in support and two annexed exhibits labeled A and B. Although not denominated as a verified petition, the declaration of facts contained therein were sworn to by the petitioner before a notary public and are, therefore, the equivalent of an affidavit. Exhibit A is the petitioner's proposed notice of claim. Exhibit B is described as a photograph of the site of the accident after the explosion occurred.
The respondents have jointly opposed the order to show cause and petition with an affirmation of counsel and one annexed exhibit labeled A. Exhibit A contains the affidavits of service of the petitioner's commencement papers upon the respondents.
LAW AND APPLICATION
Pursuant to General Municipal Law § 50-e (1) (a), a party seeking to sue a public corporation must serve a notice of claim on the prospective defendant within ninety days after the claim arises. General Municipal Law § 50-e (5) permits a court, in its discretion, to extend the time for a petitioner to serve a notice of claim. The statute requires the court to consider whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the accrual of the claim or within a reasonable time thereafter ( General Municipal Law § 50-e [5] ). Additionally, the statute requires the court to consider all other relevant facts and circumstances and provides a non-exhaustive list of factors that the court should weigh ( Newcomb v. Middle Country Cent. Sch. Dist. , 28 NY3d 455, 460—61 [2016], citing Williams v. Nassau County Med. Ctr. , 6 NY3d 531, 538-539 [2006] ).
One factor the court must consider is whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits (Id. ; General Municipal Law § 50-e [5] ). In determining whether to grant leave to serve a late notice of claim against the public corporation, the Supreme Court is required to consider whether (1) the public corporation, or its agent, acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim accrued or a reasonable time thereafter, (2) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay substantially prejudiced the public corporation in maintaining its defense on the merits (see Education Law § 3813[2—a] ; Horn v. Bellmore Union Free Sch. Dist., 139 AD3d 1006, 1007 [2nd Dept 2019] ).
The presence or the absence of any one of the statutory factors is not necessarily determinative of the determination of whether service of a late notice of claim upon a public corporation is warranted. However, whether the public corporation acquired timely, actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter is a factor which should be accorded great weight in determining whether to grant leave to serve a late notice of claim. ( General Municipal Law § 50-e [5] ; Matter of Brooks v. County of Suffolk, 177 AD3d 969 [2nd Dept 2019] ).
The Court of Appeals has held that the burden initially rests on the petitioner to show that the late notice will not substantially prejudice the public corporation. It has further held that such a showing need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice ( Newcomb , 28 NY3d at 466 ).
Both the length of delay in service and lack of actual knowledge of the facts underlying the claim certainly can affect whether the late notice substantially prejudices the public corporation in defending the claim ( Williams, 6 NY3d 531 ). Nonetheless, whether the public corporation is substantially prejudiced remains a separate inquiry under the statute ( Newcomb , 28 NY3d at 466 ). Indeed, there may be scenarios where, despite a finding that the public corporation lacked actual knowledge during the statutory period or a reasonable time thereafter, the public corporation nonetheless is not substantially prejudiced by the late notice ( Newcomb , 28 NY3d 455 citing Matter of Hubbard v. County of Madison , 71 AD3d 1313, 1315-1316 [3rd Dept 2010] ).
The rule endorsed by the Court of Appeals in Newcomb requires a petitioner to make an initial showing that the public corporation will not be substantially prejudiced and then requiring the public corporation to rebut that showing with particularized evidence. A petitioner seeking to excuse the failure to timely comply with the notice requirement should have the initial burden to show that the public corporation will not be substantially prejudiced by the delay. The public corporation, however, is in the best position to know and demonstrate whether it has been substantially prejudiced by the late notice. Requiring the public corporation to come forward with a particularized showing is appropriate in this context given that the public corporation is in the best position to provide evidence as to whether the late notice has substantially prejudiced its ability to defend the claim on the merits ( Newcomb , 28 NY3d at 468 ).
An order to show cause and petition for leave to file a late notice of claim pursuant to Section 50-e of the General Municipal Law is a special proceeding. In a special proceeding, to the extent that no triable issues of fact are raised, the court is empowered to make a summary determination (see CPLR 409[b] ). If, however, triable issues of fact are raised, an evidentiary hearing must be held (see CPLR 410 ; Laszlone v. Motor Vehicle Accident Indemnification Corp., 167 AD3d 894, 895 [2nd Dept 2018] ).
The petition is, in fact, an affidavit of the petitioner and provides sworn allegations of fact in support of the instant application. Marando has averred, inter alia, that on September 26, 2018, at approximately 11:20 AM, he was employed as a carpenter by Skanska and was renovating the walls of the subway line on the Coney Island bound N-Line train track. At that time and place he experienced the blast of an electrical explosion which was of such force that it flung him ten feet and caused him to sustain multiple physical injuries, including to his neck, right shoulder and left knee. Marando was transported from the work site to the emergency room of Maimonides Hospital. The electrical explosion was so significant that the respondents launched an investigation with Skanska into the surrounding circumstances of the explosion.
Marando's sworn allegations of fact provides some evidence as well as a plausible argument supporting a finding that the respondents will suffer no substantial prejudice by the petitioner's delay in filing of a notice of claim. In accordance with the rule endorsed by the Court of Appeals in the Newcomb decision, the burden is on the respondents to rebut the showing that they will not be substantially prejudiced with particularized evidence. The public corporation is in the best position to know and demonstrate whether it has been substantially prejudiced by the late notice.
CPLR 3018 (a) provides as follows regarding denials in responsive pleadings:
(a) Denials. A party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial. All other statements of a pleading are deemed admitted, except that where no responsive pleading is permitted they are deemed denied or avoided.
In its opposition papers to the instant petition, the respondents did not deny Marando's statement that they conducted an investigation of the electrical explosion. Nor did they address the reasonable inference that they were aware that Marando was injured by the blast because he was transported from the site by ambulance. By failing to offer any response to the allegation, it is deemed admitted ( CPLR 3018 [a] ; REP A8 LLC v. Aventura Techs., Inc., 68 AD3d 1087, 1088 [2nd Dept 2009] ).
Applying the rule set forth in Newcomb, the burden is shifted to the respondents to make a particularized showing that they suffered substantial prejudice from the petitioner's delay in filing a notice of claim. In a joint response in opposition to the petition, the respondents submitted an affirmation of their counsel and affidavits of service of the commencement papers. The affirmation solely made legal arguments claiming, inter alia, that the petition was untimely, that the petitioner failed to offer a reasonable excuse for its failure to timely file the notice of claim and that the petitioner did not meet its burden to show lack of substantial prejudice. It is noted that the affirmation of respondents' counsel demonstrated no personal knowledge of any of the facts alleged in the petition. Hence, the respondents made no showing that they have suffered or would suffer substantial prejudice from the petitioner's delay in filing a notice of claim.
By the sworn allegations of fact set forth in the petition, the petitioner has made an evidentiary showing that the respondents have suffered no substantial prejudice from the delay in filing a notice of claim. In opposition, the respondents have offered no evidence in admissible form to raise a triable issue of facts.
CONCLUSION
The petition by Domenico Marando for an order pursuant to Section 50-e of the General Municipal Law granting Marando leave to file a late notice of claim for personal injuries against the respondents is granted. The respondents are deemed serve with the proposed notice of claim that was annexed to the petition.
The foregoing constitutes the decision and order of this Court.