Opinion
934 CA 20-00018
12-23-2021
In the Matter of Steven L. SCHUNK and Jamie Schunk, Claimants-Appellants, v. TOWN OF YORK and County of Livingston, Respondents-Respondents. (Appeal No. 1.)
PAUL WILLIAM BELTZ, P.C., BUFFALO (ANNE B. RIMMLER OF COUNSEL), FOR CLAIMANTS-APPELLANTS. LIPPMAN O'CONNOR, BUFFALO (MATTHEW J. DUGGAN OF COUNSEL), FOR RESPONDENT-RESPONDENT TOWN OF YORK. WEBSTER SZANYI LLP, BUFFALO (PETER L. VEECH OF COUNSEL), FOR RESPONDENT-RESPONDENT COUNTY OF LIVINGSTON.
PAUL WILLIAM BELTZ, P.C., BUFFALO (ANNE B. RIMMLER OF COUNSEL), FOR CLAIMANTS-APPELLANTS.
LIPPMAN O'CONNOR, BUFFALO (MATTHEW J. DUGGAN OF COUNSEL), FOR RESPONDENT-RESPONDENT TOWN OF YORK.
WEBSTER SZANYI LLP, BUFFALO (PETER L. VEECH OF COUNSEL), FOR RESPONDENT-RESPONDENT COUNTY OF LIVINGSTON.
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, claimants appeal from an order that denied their application for leave to serve a late notice of claim alleging that Steven L. Schunk (claimant) sustained injuries in a motor vehicle accident that resulted from a hazardous road design that respondents created and permitted to persist. In appeal No. 2, claimants appeal from an order that denied their motion for leave to reargue and renew their application for leave to serve a late notice of claim.
With respect to appeal No. 1, we conclude that Supreme Court did not abuse its discretion in denying claimants’ application for leave to serve a late notice of claim. A party asserting a tort claim against a public corporation must serve a notice of claim within 90 days after the claim arises (see General Municipal Law § 50-e [1] [a] ; Matter of Newcomb v. Middle Country Cent. Sch. Dist. , 28 N.Y.3d 455, 460, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016], rearg denied 29 N.Y.3d 963, 51 N.Y.S.3d 496, 73 N.E.3d 853 [2017] ). "A court may, however, extend the time in which to serve a notice of claim upon consideration of several factors, including whether the claimant has shown a reasonable excuse for the delay, whether [the] respondents had actual knowledge of the facts surrounding the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would cause substantial prejudice to the [respondents]" ( Matter of Diaz v. Rochester-Genesee Regional Transp. Auth. [RGRTA] , 175 A.D.3d 1821, 1821, 109 N.Y.S.3d 806 [4th Dept. 2019] [internal quotation marks omitted]). "While the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether the [respondent] received actual knowledge of the facts constituting the claim in a timely manner" ( Matter of Turlington v. Brockport Cent. Sch. Dist. , 143 A.D.3d 1247, 1248, 39 N.Y.S.3d 338 [4th Dept. 2016] [internal quotation marks omitted]; see Matter of Bingham v. Town of Wheatfield , 185 A.D.3d 1482, 1484-1485, 128 N.Y.S.3d 729 [4th Dept. 2020] ). "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. Schools , 107 A.D.3d 1517, 1518, 966 N.Y.S.2d 787 [4th Dept. 2013], affd 22 N.Y.3d 1000, 979 N.Y.S.2d 559, 2 N.E.3d 928 [2013] [internal quotation marks omitted]).
Here, there is no dispute that claimants’ unsubstantiated claim of law office failure does not constitute a reasonable excuse for their failure to serve a timely notice of claim (see Matter of Lugo v. GNP Brokerage , 185 A.D.3d 824, 826, 127 N.Y.S.3d 527 [2d Dept. 2020] ; Seif v. City of New York , 218 A.D.2d 595, 596, 630 N.Y.S.2d 742 [1st Dept. 1995] ). Moreover, we conclude that claimants failed to establish that respondents had actual knowledge of the facts surrounding the claim. To establish actual knowledge, claimants were required to show that respondents had "knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim, and not merely some general knowledge that a wrong has been committed" ( Matter of Tejada v. City of New York , 161 A.D.3d 876, 877, 77 N.Y.S.3d 95 [2d Dept. 2018] [internal quotation marks omitted]; see Matter of Szymkowiak v. New York Power Auth. , 162 A.D.3d 1652, 1655, 80 N.Y.S.3d 565 [4th Dept. 2018] ). Contrary to claimants’ contention, the police report prepared following the motor vehicle accident did not provide actual knowledge of the essential facts constituting the claim because nothing contained therein would have allowed respondents to readily infer that the accident was, as claimants assert, attributable to hazardous road design or construction (see Brown v. City of Buffalo , 100 A.D.3d 1439, 1440, 954 N.Y.S.2d 303 [4th Dept. 2012] ). Additionally, we conclude that the prior discussions between respondents concerning public requests for the installation of a four-way stop at the accident site did not establish respondents’ actual knowledge (cf. Fenton v. County of Dutchess , 148 A.D.2d 573, 575, 539 N.Y.S.2d 42 [2d Dept. 1989], lv denied 74 N.Y.2d 608, 545 N.Y.S.2d 104, 543 N.E.2d 747 [1989] ) and that evidence that local residents previously complained about the potentially dangerous condition of the roads at the accident site constituted, at best, constructive knowledge of the essential facts of the claim, which is insufficient (see Matter of Ficek v. Akron Cent. Sch. Dist. , 144 A.D.3d 1601, 1603, 41 N.Y.S.3d 616 [4th Dept. 2014] ). In light of our determination, we need not consider claimants’ remaining contention in appeal No. 1.
With respect to appeal No. 2, the appeal from the order insofar as it denied that part of claimants’ motion seeking leave to reargue must be dismissed because no appeal lies therefrom (see MidFirst Bank v. Storto , 121 A.D.3d 1575, 1575, 993 N.Y.S.2d 854 [4th Dept. 2014] ; Empire Ins. Co. v. Food City , 167 A.D.2d 983, 984, 562 N.Y.S.2d 5 [4th Dept. 1990] ). The court did not abuse its discretion in denying that part of the motion seeking leave to renew because claimants’ "submissions on that motion were merely cumulative of [their] submissions in [support of] the original [application]" ( Violet Realty, Inc. v. Gerster Sales & Serv., Inc. [appeal No. 2], 128 A.D.3d 1348, 1349-1350, 6 N.Y.S.3d 896 [4th Dept. 2015] [internal quotation marks omitted]; see Giangrosso v. Kummer Dev. Corp. , 16 A.D.3d 1094, 1094-1095, 790 N.Y.S.2d 919 [4th Dept. 2005] ), and therefore claimants did not adduce any new facts in support of that part of their motion (see CPLR 2221 [e] [2] ).