Opinion
Index No.: 903153-19
08-13-2019
Montrell Perkins Petitioner, v. Albany Port District Commission a/k/a Port of Albany, and the City of Albany, New York, Respondents.
APPEARANCES: Buckley, Mendelson, Criscione & Quinn, P.C. Attorneys for Petitioner By: John J. Criscione, Esq. 29 Wards Lane Albany, New York 12204 Patrick K. Jordan, Esq. Attorney for Respondent Albany Port District Commission By: Patrick K. Jordan, Esq. 106 Smith Boulevard Albany, New York 12202 William G. Kelley, Jr., Esq. Corporation Counsel, City of Albany Attorney for Respondent City of Albany By: Madalyn R. Dethomasis, Esq. City Hall, Room 106 24 Eagle Street Albany, New York 12207
NYSCEF DOC. NO. 22 DECISION AND ORDER
RJI No.: 01-19-131842 APPEARANCES: Buckley, Mendelson, Criscione & Quinn, P.C.
Attorneys for Petitioner
By: John J. Criscione, Esq.
29 Wards Lane
Albany, New York 12204 Patrick K. Jordan, Esq.
Attorney for Respondent
Albany Port District Commission
By: Patrick K. Jordan, Esq.
106 Smith Boulevard
Albany, New York 12202 William G. Kelley, Jr., Esq.
Corporation Counsel, City of Albany
Attorney for Respondent City of Albany
By: Madalyn R. Dethomasis, Esq.
City Hall, Room 106
24 Eagle Street
Albany, New York 12207 David A. Weinstein, J.:
Petitioner Montrell Perkins brought this special proceeding, by order to show cause dated May 23, 2019, seeking leave to file a late Notice of Claim against respondents Albany Port Commission a/k/a Port of Albany (the "Port"), and the City of Albany, New York (the "City"), in accordance with General Municipal Law § 50-e (5), as a result of his alleged injuries from a slip and fall while at work at the Port.
The petition alleges as follows: Perkins, a union member of ILA Local 1518, was employed as a longshoreman with the Federal Marine Terminal ("FMT") (Verified Petition, sworn to on May 22, 2019 ["Pet"] ¶ 3). His duties included unloading and warehousing products, supplies and equipment bound for shipment and delivery from the Port of Albany (id.).
At about 10:30 A.M. on December 13, 2018, Perkins finished a coffee break in "Shed #1" - a trailer located at 109 Smith Boulevard at the Port of Albany - and exited through the breakroom's rear door. He was "walking alongside the two trailers for Unions 1518 and 1294, when [he] encountered a patch of ice that had been covered by some freshly fallen snow causing [his] legs to go out from under [him]" (id. ¶ 4). According to Perkins, he "flew [] up into the air . . . landing flat on [his] shoulder, back and head," subsequently noticing that he "was lying on a piece of ice which was covered with snow" (id.). There were no witnesses to the incident (id.).
Perkins called for help, and fellow longshoreman John Browning came over and assisted him to a nearby picnic table outside the union trailers (id.). Several other co-workers came to his aid and helped Perkins back into the breakroom to wait for emergency personnel (id.).
Members of the Port's Security Department, who were in their office adjacent to the location of the fall, also came to the scene to check on petitioner (id. ¶ 5). An incident report prepared by the Security Department states that, at approximately 10:35 a.m., "Mr. Perkins walking in lot slipped on icy spot and fell injuring his back. Supervisor Matt Sullivan requested ambulance" (Affirmation of John J. Criscione, Esq., dated May 23, 2019, ["Criscione Aff"] ¶ 2 & Exhibit to proposed Notice of Claim and Notice of Intention to Commence an Action Thereon, dated May 22, 2019 ["Notice of Claim"]).
At approximately 10:38 a.m., the City of Albany Fire Department dispatched personnel to the scene, and they arrived at 10:44 a.m. to find Perkins in the Shed sitting in a chair (Notice of Claim with attached Albany Fire Department incident report). According to the Fire Department's incident report, petitioner "slipped on icy snow and hurt lower back." (id.). In addition, the report notes that Perkins had back surgery five years prior (id.). Mohawk Ambulance arrived at approximately 10:58 a.m., and transported petitioner to Albany Memorial Hospital (Notice of Claim with attached Mohawk Ambulance Service Patient Care Report). According to the Ambulance Report, "on arrival to the scene, [patient] was found ambulating from the security office building with [Albany Fire Department] personnel assisting . . . [patient] reported slipping on ice and falling on the back of his head and shoulders" (id.).
Petitioner contends that the location where he fell had a history of "depression, holes and unevenness in the asphalt during the winter months" (Pet ¶ 7). Such condition allegedly caused "large amounts of water [to] pool and freeze causing icy conditions" (id.). Petitioner recalled attending several meetings with his employer, FTM, concerning the icy conditions (id.).
Perkins "originally had hoped that [his] injury would heal more favorably and [he] could return to work" (id. ¶ 8). However, he states that, on January 24, 2019, his spine specialist, Dr. John Whalen, told him that he was "totally disabled from work and that his symptoms were consistent with [his] accident on December 13, 2018" (id. ¶ 11). He is currently receiving Long Shoreman Workers' Compensation benefits (id. ¶ 8).
Presumably, this is a reference to benefits available under the federal Longshore and Harbor Workers Compensation Act, 33 USC § 901, et seq.
Petitioner contends that he was not aware that he had to give notice of his claim to respondents within 90 days of his accident (id.). That deadline expired on March 13, 2019, and he brought the present motion to file a late notice of claim under General Municipal Law § 50-e (5) about 70 days thereafter.
Perkins argues that respondents had actual knowledge of the essential facts constituting petitioner's claim within the 90-day period following the accident, and thus there would be no prejudice that would be caused to them by granting the service of a late notice of claim (Criscione Aff ¶ 10). This argument relies on the presence of personnel from the City Fire Department and Port at the scene of the incident (id.). Petitioner contends that the emergency responders' knowledge of his slip and fall is sufficient to demonstrate that their employers had actual knowledge of the essential facts of Perkins' cause of action against the City and the Port (id.). He further argues that respondents were aware of the alleged uneven and depressed pavement that presented a dangerous condition by allowing pools of water to freeze during winter months, but does not present any specific evidence in support of this claim (id. ¶¶ 12-13).
Additionally, petitioner contends that defendants were not prejudiced by their inability to examine the accident scene within 90 days, since ice and snow accumulation is a temporary condition, and even if notice had been given within 90 days of the date of the accident, the condition of the ice and snow on that day would have changed during the ensuing weeks (Criscione Aff ¶ 17). He further argues that, upon information and belief, the alleged neglected state of the pavement where Perkins fell has not changed but for the presence of ice and snow (id.).
In his reply submission, Perkins clarifies that both the depressed pavement at the location of the accident and the failure to remove snow and ice from such depression caused him to slip and fall, as the latter allowed for creation of a transitory condition of ice. He argues that notice of the substance of the claim, even during the required 90-day period, would not have enabled respondents to examine the precise conditions that existed at the time of Perkins' fall (Reply Affidavit of John J. Criscione, Esq., sworn to on June 27, 2019 ¶¶ 8, 12).
The City and Port oppose this application, each claiming that it had no actual notice of the substance of the claim (Affirmation of Patrick K. Jordan, Esq., dated June 20, 2019 ["Jordan Aff"] ¶ 3; Affirmation of Madalyn R. Dethomasis, Esq., dated June 20, 2019 ["Dethomasis Aff"] ¶ 3). Respondents also contend that petitioner has not offered any reasonable excuse for not timely filing a Notice of Claim (Jordan Aff ¶ 9; Dethomasis Aff ¶ 9). Although petitioner asserts that he did not fully comprehend the severity of his injuries until it was too late to timely file a claim, respondents note that Perkins was advised by Dr. Whalen in January 2019 that he could not return to work, leaving sixty additional days before the deadline set forth in section 50-e expired (Jordan Aff ¶ 10; Dethomasis Aff ¶ 18).
With regard to, prejudice, the Port asserts that it was deprived of the ability to examine Perkins and the full extent of his alleged injuries contemporaneously with the accident, to ensure that he had not sustained such injuries prior to the incident (Jordan Aff ¶ 16). Respondents also argue that they were denied an opportunity to examine the location of the accident during a period when it would have been in essentially the same condition as on the day of the fall, thus further prejudicing their ability to defend themselves (Jordan Aff ¶ 14; Dethomasis ¶¶ 22-25).
In his reply, petitioner submits photographs and a video, said to be of the condition of the pavement at the location of his accident (Affidavit of James M. Keleher, sworn to on June 27, 2019 ["Keleher Aff"] ¶ 9-13, Exs 1-4). The photos and video were taken by James Keleher, petitioner's co-worker and fellow longshoreman, who arrived on the scene after Perkins was taken inside the Shed (id. ¶ 2). Keleher states that he inspected the area where petitioner fell and found it to be covered with ice, but "concealed with a cover and dusting of freshly fallen snow" (id.). Keleher contends that the pavement is still in ill repair and water routinely pools in this location (id. ¶¶ 8-9).
Petitioner further argues that the incident reports prepared by the City Fire Department and the Port demonstrate that respondents had actual knowledge of the essential facts constituting petitioner's claim well within the required 90-day period (Reply Affidavit of John J. Criscione, Esq., sworn to on June 27, 2019 ¶¶ 4-5).
Discussion
Section 50-e (1)(a) of the General Municipal Law provides that "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" (Newcomb v Middle Country Cent. School Dist., 28 NY3d 455, 460 [2016] [citation and internal quotation marks omitted]). In the event the party seeking to bring suit fails to give notice of the claim within this time frame, 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" (id.). In doing so, "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' " (id. citing General Municipal Law § 50-e [5]; see also Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147 [2d Dept 2008] [finding actual knowledge of the claim to be "the most important, based on its placement in the statute and its relation to other relevant factors"]).
Petitioner presents ample evidence that defendants in this case knew of his fall immediately after it occurred. But a public corporation's "knowledge of the accident and the injury, without more, does not constitute 'actual knowledge of the essential facts constituting the claim' " (Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 147); see also Matter of Curiel v Town of Thurman, 289 AD2d 737, 738 [3d Dept 2001] ["knowledge of a police officer or of police department cannot be considered actual knowledge of the public corporation itself regarding essential facts of a claim"]; Mater of Crocco v Town of New Scotland, 307 AD2d 516, 517 [3d Dept 2003] [county employee on hand to render first aid to petitioner, along with presence of members of the town rescue squad to transport petitioner to hospital is by itself insufficient to establish actual notice of essential facts of claim]). For a public corporation to be found to have "actual knowledge of the essential facts constituting the claim, it must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim" (Felice, 50 AD3d at 148).
Moreover, a cursory incident report that merely documents an accident and resulting injury - even when prepared by representatives of a public corporation - does not, by itself, provide sufficient notice of essential facts regarding a potential claim against said corporation (see Jin Gak Kim v Dormitory Authority of State, 140 AD3d 1459, 1460 [3d Dept 2016] [accident report relating that petitioner dropped seven-foot long two-by-four board from above of his head to his shoulder, resulting in "sore shoulder" did not covey essential facts regarding a potential claim]; Harding v Yonkers Central School District, 170 AD3d 725, 726 [2d Dept 2019 [police accident report prepared by officer on scene that did not contain facts to establish that petitioner sustained serious injury as a result of respondent's negligence, was insufficient to demonstrate that respondent had actual notice of essential facts]; Kirtley v Albany County Airport, 67 AD3d 1317, 1318 [3d Dept 2009] [accident report of slip and fall did not contain facts that Airport was responsible for the wet floor or otherwise liable, and was therefore insufficient to convey essential facts of claim to defendant]; Matter of Curiel v Town of Thurman, 289 AD2d at 738 [police accident report that failed to mention any causes of accident to connect the accident with any negligence on the part of the municipality or otherwise reveal nature of the claim was insufficient to impute actual knowledge to respondent]; compare Coplon v Town of Eastchester, 82 AD3d 1095, 1096 [2d Dept 2011] [incident report prepared by Town's Police Department found to impute essential facts of claim where it "detailed the nature and alleged cause of the accident, and indicated that the Town's Highway Department responded to correct the icy condition"]).
Here, the reports prepared by the Albany Port District Commission's Security Office and the City Fire Department do nothing more than vaguely document that Perkins slipped on ice, resulting in a back injury. There is no information in the reports indicating that respondents might somehow be liable for the petitioner's slip and fall on the ice that was covered by freshly fallen snow, or that some defect in the pavement produced the condition. Also absent are any facts showing that petitioner or his representatives contacted respondents during the ninety days following petitioner's accident in a manner that would put respondents on notice of potential liability (see e.g. Euson v County of Tioga, 94 AD3d 1279, 1280-81 [3d Dept 2012] [County Sheriff's detailed investigative report, combined with respondent's counsel being contacted during 90-day period by petitioner's counsel concerning driver's employment with the County imputed essential facts constituting a claim to respondent]; Franco v Town of Cairo, 87 AD3d 799, 801 [3d Dept 2011] [accident report stating that petitioner slipped on built up ice near the town's library, combined with letter from petitioner's law firm to the library during the 90-day period requesting that it forward such letter to its liability insurance carrier, was sufficient evidence of actual knowledge and an opportunity to investigate]). Thus, the evidence before me is insufficient to demonstrate that the City or Port had actual knowledge of the essential facts to support a claim for liability (see Felice, 50 AD3d at 148).
Petitioner's submission includes a response to a request for documentation made to the Port under the Freedom of Information Law ("FOIL"). Although a FOIL inquiry during the 90-day period has been found to convey sufficient information to put a respondent on notice of liability (see Dewey v Town of Colonie, 54 AD3d 1142, 1143 [3d Dept 2008], the record here does not have any information which would sustain such a finding in this case. Petitioner does not assert that his FOIL inquiry to the Albany Port District Commission occurred during the ninety days following Perkins' accident or that the request in any way conveyed essential facts concerning respondent's potential liability. The request itself is not contained in the record before me.
To the extent that petitioner seeks limited discovery to demonstrate that respondents were aware that petitioner fell and hurt his back (Criscione Aff ¶ 11), such discovery would be irrelevant since mere knowledge of the accident and the injury, without more, does not constitute actual knowledge of the essential facts of the underlying claim for liability against respondents (see Felice, 50 AD3d at 147-48).
In addition to considering whether a respondent acquired actual knowledge of the essential facts of petitioner's claim, General Municipal Law § 50-e (5) also "requires the court to consider 'all other relevant facts and circumstances' and provides a 'nonexhaustive list of factors that the court should weigh' " (Newcomb, 28 NY3d at 460). This list includes "whether [petitioner] offered a reasonable excuse for the delay in filing a claim and whether that delay would substantially prejudice [respondent], with no one factor being dispositive" (Jin Gak Kim v Dormitory Authority of State, 140 AD3d at 1460. Furthermore, in relation to prejudice, "the burden initially rests on the petitioner to show that late notice will not substantially prejudice the public corporation" (Newcomb, 28 NY3d at 466 ["such showing need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice").
For his excuse in failing to timely file a notice of claim, petitioner asserts that he was not aware of the ninety day requirement. Ignorance of the filing requirement, however, is not a cognizable excuse (see Matter of Crocco v Town of New Scotland, 307 AD2d at 517 [lack of knowledge of General Municipal Law filing requirement is unacceptable as an excuse for failure to comply with such requirement]). It also appears that petitioner is claiming that his belief that his injuries were not serious caused him to delay giving the required notice of claim. Such a contention, however, is at odds with the fact that Perkins admits to being told by his treating physician in January 2019 that he was totally disabled from work approximately 60 days prior to the expiration of the 90-day period on March 13, 2019 (Pet ¶ 11; Criscione Aff ¶ 6). Furthermore, even if petitioner did not learn of the severity of his injuries until after March 13, such an excuse "is unavailing without supporting medical evidence explaining why the possible permanent effects of the injury took so long to become apparent and be diagnosed" (Felice, 50 AD3d at 151).
Finally, petitioner bears the burden of showing that his delay in filing a notice of claim will not substantially prejudice respondents in maintaining their defense on the merits (Newcomb, 28 NY3d at 466). Perkins correctly notes in his submission that the transitory nature of ice and snow make it unlikely that the exact conditions existing at the time of the accident would have existed until the end of the ninety day notice period (see Matter of Sutton v Town of Schuyler Falls, 185 AD2d 430, 432 [3d Dept 1992] [recognizing that plowing, sanding, salting and snow and ice removal occurs routinely in the winter months]). Nevertheless, respondents were still denied the opportunity to investigate the condition of the asphalt at the time of the accident to determine if such condition contributed to petitioner's accident as now alleged. Respondent has made no showing, except on information and belief, that the passage of time had no impact on that condition, and thus on the Port's and the City's ability to review the location as it existed when Perkins fell (see Minkowicz v City of New York, 100 AD3d 1000, 1000-01 [2d Dept 2012] [given transient nature of pothole in the street over which petitioner fell, respondent was denied opportunity to examine its contemporaneous condition]).
The record before me also indicates that petitioner had a pre-existing back injury prior to his accident and that he had surgery on his back since the fall. On this basis, respondents argue that they did not have the opportunity to have Perkins independently examined within the 90-day period to determine if his condition following the fall could be attributed to his pre-existing injury or if he may have possibly injured himself subsequent to the December 13 incident (Jordan Aff ¶ 16). There is caselaw to support the argument that a finding of prejudice may be made on such basis (see Sampson v Cazzari, 142 AD2d 681, 682 [2d Dept 1988]),. Nevertheless, I find respondent's conclusory assertion insufficient in this regard. Absent medical evidence or other specific allegation to support this contention, it is impossible to determine at this stage whether respondents' ability to determine the impact of petitioner's prior injuries was really impacted by such a relatively brief delay.
Accordingly,
It is hereby ORDERED that the motion to serve a late notice of claim is denied and the petition is hereby dismissed.
This shall constitute the Decision & Order of the Court. This Decision & Order is being electronically transmitted to the County Clerk for filing, with copies being simultaneously provided to petitioner's and respondents' counsel. The signing of this Decision and Order and electronic transmittal to the County Clerk shall not constitute notice of entry under CPLR 5513, and the parties are not relieved from the applicable provisions of that Rule respecting to filing and service of Notice of Entry. Dated: August 13, 2019
Albany, New York
ENTER
/s/_________
David A. Weinstein
Acting Supreme Court Justice Papers Considered: 1. Order to Show Cause, dated May 23, 2019, with Verified Petition, dated May 22, 2019, supported by Affirmation of John J. Cricione, Esq., dated May 23, 2019, with Exhibits annexed thereto and accompanying Memorandum of Law. 2. Attorney Affirmation in Opposition of Patrick K. Jordan, Esq., dated June 20, 2019 and Attorney Affirmation in Opposition of Madalyn R. Dethomasis, Esq., dated June 20, 2019. 3. Reply Affidavit of John J. Criscione, Esq., sworn to on June 27, 2019, with Exhibits annexed thereto. 4. Affidavit of James M. Keleher, sworn to on June 27, 2019, with Exhibits annexed thereto.