Opinion
2016–01316 2016–07470 Index No. 710142/15
11-07-2018
In the Matter of John NADLER, et al., Appellants, v. CITY OF NEW YORK, et al., Respondents.
Marc J. Bern & Partners, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac, White Plains, and Jillian Rosen, New York,], of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng, New York, and Melanie T. West of counsel), for respondents.
Marc J. Bern & Partners, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac, White Plains, and Jillian Rosen, New York,], of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng, New York, and Melanie T. West of counsel), for respondents.
RUTH C. BALKIN, J.P., SANDRA L. SGROI, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or, in effect, to deem a late notice of claim timely served nunc pro tunc, the petitioners appeal from (1) an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), dated January 26, 2016, and (2) an order of the same court entered July 1, 2016. The order dated January 26, 2016, insofar as appealed from, denied the petition. The order entered July 1, 2016, insofar as appealed from, denied that branch of the petitioners' motion which was for leave to renew the petition.
ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.
On July 1, 2014, the petitioner John Nadler (hereinafter Nadler) allegedly sustained injuries as a result of falling off an A-frame ladder while taking field measurements for a "light trough" at the Rockaway Boardwalk construction project on premises allegedly owned, operated, and controlled by the respondents. According to an accident report prepared by the respondent New York City Department of Design and Construction (hereinafter the DDC) and an incident investigation report prepared by Nadler's employer, a nonparty contractor, Nadler lost his balance while reaching for his clipboard, which had been blown off the ladder by a gust of wind.
On September 25, 2015, the petitioners commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or, in effect, to deem a late notice of claim timely served nunc pro tunc. The petitioners alleged violations of Labor Law §§ 200, 240(1), and 241(6). In an order dated January 26, 2016, the Supreme Court, inter alia, denied the petition on the grounds that the petitioners failed to annex an accident report showing a causal nexus between Nadler's injuries and a violation of the Labor Law to demonstrate that the respondents had acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, and that the petitioners failed to establish that the respondents were not prejudiced by the delay.
The petitioners subsequently moved, among other things, for leave to renew their petition based upon the accident report prepared by the DDC on the date of the accident and the incident investigation report prepared by Nadler's employer on July 3, 2014. The petitioners argued that those reports established that the respondents acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident, and that the respondents suffered no prejudice as a result of the delay in serving a notice of claim since the respondents investigated the claim. In an order entered July 1, 2016, the Supreme Court, inter alia, denied leave to renew on the ground that the accident report and the incident investigation report would not have changed its prior determination, since they established only that Nadler lost his balance. The petitioners appeal from both orders.
In determining whether to grant a petition 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 Matter of Weaver v. City of New York, 138 A.D.3d 873, 29 N.Y.S.3d 539 ). " ‘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’ " ( Matter of Mohamed v. New York City, 139 A.D.3d 858, 858, 31 N.Y.S.3d 182, quoting Matter of Placido v. County of Orange, 112 A.D.3d 722, 723, 977 N.Y.S.2d 64 ). A petition for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc is addressed to the sound discretion of the court (see generally Matter of Ruiz v. City of New York, 154 A.D.3d 945, 63 N.Y.S.3d 425 ).
Here, the petitioners failed to establish that the respondents acquired actual knowledge of the essential facts constituting the claim within 90 days after the accident or a reasonable time thereafter, to provide a reasonable excuse for their delay, or to show that the respondents would not be substantially prejudiced in their ability to maintain a defense (see Matter of Weaver v. City of New York, 138 A.D.3d 873, 29 N.Y.S.3d 539 ; Andrews v. Long Is. R.R., 110 A.D.3d 653, 972 N.Y.S.2d 633 ). Accordingly, the Supreme Court providently exercised its discretion in denying the petition for leave to serve a late notice of claim or, in effect, 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 previously offered that would change the prior determination (see CPLR 2221[e][2] ). The accident report prepared by the DDC and the incident investigation report prepared by Nadler's employer both stated that Nadler lost his balance while reaching for his clipboard, which had been blown away by the wind. "The mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided" ( Delahaye v. Saint Anns School, 40 A.D.3d 679, 682, 836 N.Y.S.2d 233 ; see Esteves–Rivas v. W2001Z/15CPW Realty, LLC, 104 A.D.3d 802, 961 N.Y.S.2d 497 ; Artoglou v. Gene Scappy Realty Corp., 57 A.D.3d 460, 869 N.Y.S.2d 172 ; Xidias v. Morris Park Contr. Corp., 35 A.D.3d 850, 828 N.Y.S.2d 432 ). There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries (see Artoglou v. Gene Scappy Realty Corp., 57 A.D.3d at 461, 869 N.Y.S.2d 172 ). Here, the evidence submitted by the petitioners demonstrated that Nadler fell off the ladder because he lost his balance, and there was no evidence that the ladder from which he fell was defective or inadequate (see Matter of Maldonado v. City of New York, 152 A.D.3d 522, 58 N.Y.S.3d 506 ; Hugo v. Sarantakos, 108 A.D.3d 744, 970 N.Y.S.2d 245 ; Gaspar v. Pace Univ., 101 A.D.3d 1073, 957 N.Y.S.2d 393 ; Chin Sue v. City of New York, 83 A.D.3d 643, 919 N.Y.S.2d 870 ).
Furthermore, the petitioners failed to make an initial showing of a lack of substantial prejudice due to their delay (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 45 N.Y.S.3d 895, 68 N.E.3d 714 ). While the DDC accident report stated that the respondents took photographs of the accident scene shortly after the accident, there was no indication that an investigation of the petitioners' specific claim of negligence was undertaken or contemplated. In addition, although the incident investigation report prepared by Nadler's employer indicated that a witness statement was taken, there was no indication that this statement was provided to the respondents. Finally, the petitioners again failed to proffer a reasonable excuse for their failure to serve a timely notice of claim (see generally Bazile v. City of New York, 94 A.D.3d 929, 943 N.Y.S.2d 131 ).
Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the petitioners' motion which was for leave to renew their petition.
BALKIN, J.P., SGROI, MILLER and CONNOLLY, JJ., concur.