Smith v. Town of Mansfield

Full title: NICHOLAS SMITH Petitioner v. TOWN OF MANSFIELD Respondent

Court: STATE OF NEW YORK SUPREME COURT : COUNTY OF CATTARAUGUS

Date published: Jul 6, 2020

2020 N.Y. Slip Op. 34505 (N.Y. Sup. Ct. 2020)

Opinion

Index No. 89307

07-06-2020

NICHOLAS SMITH Petitioner v. TOWN OF MANSFIELD Respondent

Richard Hall, Esq. Aaron C. Gorski, Esq. Attorneys for Petitioner Peter L. Veech, Esq. Attorney for Respondent

HON. TERRENCE M. PARKER, A.S.C.J Justice Presiding

NYSCEF DOC. NO. 23 HON. TERRENCE M. PARKER, A.S.C.J Justice Presiding DECISION AND ORDER Richard Hall, Esq.
Aaron C. Gorski, Esq.
Attorneys for Petitioner Peter L. Veech, Esq.
Attorney for Respondent

Petitioner filed an Amended Order to Show Cause seeking (1) to compel pre-action discovery against Respondent; (2) permission to file a late notice of claim; and (3) allowing Petitioner leave to conduct discovery limited to issues presented in the late notice application. (Doc #15) The Court has considered NYSCEF Documents #1 through 20 and #22.

Petitioner was an employee of Hybrid Building Solutions ("Hybrid") who was allegedly injured on March 29, 2019, while he was working on a project at the Mansfield Highway Department in Little Valley, New York. Petitioner was informed by his employer that the work performed by Hybrid was a New York State Department of Transportation project. (Doc #3) Petitioner filed a Notice of Intention to File a Claim against New York State on May 15, 2019. The C-2F filed by Hybrid dated April 16, 2019, reporting the accident to the Workers' Compensation Board, noted that the accident location was the Town of Mansfield Highway Department and that Hybrid was "building the town a salt storage building." (Doc #9) On June 6, 2019, Petitioner obtained an order for pre-action discovery against Hybrid, and obtained a copy of the Agreement for the project. (Doc #5, 10)The Agreement for the project in question clearly indicated that Respondent had contracted with Hybrid. (Doc #10) Petitioner's counsel contends that the contract was ordered to be produced within 30 days of the service of the June 6, 2019 Order of Judge Nowak permitting pre-action disclosure. Petitioner's counsel states that although the contract was apparently produced through an e-mail to Petitioner's counsel in September 2019, he did not locate the contract until counsel received an e-mail from Hybrid's insurance carrier on June 8, 2020. Petitioner's application is void of any attempts from June 6, 2019 to June 8, 2020 to follow-up on the requests for pre-action disclosure. On June 12, 2020, Petitioner served a Notice of Claim on Respondent. (Doc #4) Upon review of the contract, Petitioner sought leave to file a late notice of claim, or alternatively, for the Court to deem the notice served as timely.

Petitioner contends he has a reasonable excuse for the delay in filing the notice of claim because Hybrid initially informed him that New York State hired the company for the project, and that the Agreement for the project showing Respondent as the contracting party was only recently located by counsel. Petitioner contends that Respondent likely had actual notice of the accident since Petitioner went into Respondent's facility after the fall and Respondent's employees were present on site during the project and maintained offices on the same property. James Griffin, a foreman for Hybrid, and Chris Cordosi, a Hybrid employee, both submitted affidavits setting forth their recollection of the accident. (Docs #7 and 8) Griffin and Cordosi stated there were Town of Mansfield Highway Department workers at the Highway Department building during the project. Mr. Griffin stated that the highway superintendent or supervisor performed some of the work digging the excavation. While both witnesses state they saw Petitioner go inside the Town of Mansfield Highway Department to clean up after the accident, the affidavits do not indicate any of Respondent's employees were present in the building or at the worksite on the day of the accident. Petitioner states that when he went in the building to clean up after the accident, there were people in the building which he believed were employees of the Mansfield Highway Department. Petitioner does not assert the names of the Respondent's employees who were in the building or indicate that he or his supervisor, Brian Merkwa, who accompanied him into the building, spoke with anyone inside the building or notified anyone of the accident or Petitioner's injuries.

Petitioner contends that Respondents are not substantially prejudiced in their ability to defend the case because the construction site was transient and even if notice was given within ninety days the condition would have changed; Petitioner's two co-workers, who were witnesses to the accident, submitted affidavits and reside in the area and could provide testimony; and an employer's first report of injury documenting the accident has been provided. Additionally, Petitioner claims Respondent is not prejudiced since it will likely be indemnified by Hybrid and its insurance carrier who have had knowledge of the accident.

In opposition to Petitioner's application, Respondent has submitted affidavits of the Town Supervisor, Robert Keis, and the Highway Superintendent, Bradley Hurley. Keis and Hurley confirm that Respondent entered into a contract with Petitioner's employer on October 1, 2018. Both representatives state that no one from the Town was present on the construction site or witnessed the alleged fall. Respondent was not notified of the fall or alleged injuries until the present application before the Court. No reports or documents of the fall other than the C-2F, which it received with Petitioner's application, were provided to the Respondent. Thus, the first notification of the accident was the present application before the Court. Keis and Hurley further confirm that the Respondent had no control over Hybrid, and that the construction site was demobilized in August 2019. Respondent argues that had they received timely notice, it could have investigated the conditions present at the site as well as the equipment and materials. The Town has no records, photos, videos or images of the condition of the site, and none have been proffered by Petitioner. Thus, Respondent argues it is substantially prejudiced in defending itself and the application should be denied.

PRE-ACTION DISCLOSURE

Petitioner seeks pre-action discovery from Respondent pursuant to CPLR § 3102(c). CPLR § 3102(c) provides that

Before action commenced. Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order. N.Y. C.P.L.R. 3102 (McKinney)

Petitioner seeks:

"(1) Any and all accident reports and/or investigation reports regarding Mr. Smith's accident which occurred at Mansfield Highway Department, 7629 Maple Road, Little Valley, New York on or about March 29, 2019.
(2) Any documents, emails, or other evidence of notice of the accident to or from Respondent, TOWN OF MANSFIELD and HYBRID BUILDING SOLUTIONS."
(3) List of employees present at the property on the day of the accident.

Petitioner also seeks to require Respondent preserve all documents and evidence in whatever form maintained, and to prevent the destruction or disposal of any such evidence. Petitioner claims he is seeking the information to determine and preserve facts. Petitioner does not claim the information is necessary to aid in bringing the action or to determine potential defendants. Petitioner previously obtained through pre-action disclosure the Agreement regarding the work performed, and has sufficient information to determine the identities of prospective defendants. Petitioner has not identified the need for the requested information to enable him to draft a complaint. Respondent has indicated that it does not have any records or evidence relating to the accident in question.

The motion for pre-action disclosure and for leave to conduct limited discovery is denied. (Moorman v. K.M. Davis Co., 216 A.D.2d 958 [4^th Dept 1995]). Petitioner's motion to require Respondent to preserve any documents and evidence in its possession regarding Petitioner's accident is moot since Respondent has no documents regarding the accident. Respondent is required to preserve any records regarding Respondent's employees who worked on the day of the accident.

PERMISSION TO FILE LATE NOTICE OF CLAIM

General Municipal Law requires a party seeking to sue a public corporation to serve a notice of claim on the municipality within ninety days after the claim arises. N.Y. Gen. Mun. Law § 50-e(1)(a) (McKinney). Petitioner seeks permission to file a late notice of claim pursuant to New York State General Municipal Law § 50-e(5), which provides that "(t)he extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation." Court can consider the present application since the statute of limitations had not expired at the time of the filing of the application.

In deciding whether to grant an application for leave,

(i)t is well settled that key factors for the court to consider in determining an application ... are whether the claimant has demonstrated a reasonable excuse for the delay, whether the [public corporation] acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would substantially prejudice the [public corporation] in maintaining a defense on the merits. The presence or absence of any given factor is not determinative of the application and, moreover, the factors are directive rather than exclusive. (quotations and citations omitted)
(Dusch v Erie Ct. Med. Ctr., No. 1025, 2020 WL 3159583 [4^th Dept 2020])

In the present case, petitioner has not offered a reasonable excuse for the delay. The C2-F indicated the property where the accident occurred was town property and the agreement between Petitioner's employer and Respondent was provided months before the present application. Lack of due diligence in determining the identity of an owner of property is not a reasonable excuse for failure to serve a late notice of claim. (Perez v City of New York, 175 AD3d 1534 [2d Dept 2019]). However, a petitioner's failure to offer a reasonable excuse for the delay is not necessarily fatal to an application seeking leave to serve late notice. (Matter of Lindstrom v Board of Educ. of Jamestown City School Dist., 24 AD3d 1303 [4th Dept 2005]).

In evaluating the remaining factors, while presence or absence of any one factor is not necessarily determinative, a factor that should be accorded great weight is whether the municipality received actual knowledge of essential facts constituting the claim. (Powell v. Cent. New York Reg'l Transportation Auth., 169 AD3d 1412 [4^th Dept. 2019], reargument denied, 171 A.D.3d 1573, and leave to appeal denied, 34 N.Y.3d 904 [2019] and (Turlington v Brockport Cent. Sch. Dist., 143 AD3d 1247 [4^th Dept 2016]).

It is undisputed that no accident reports were prepared by Respondent and the C-2F form completed by Hybrid was not provided to Respondent at the time of the accident. The C-2F was not provided to Respondent until the present application. Given Hybrid was not an agent of Respondent, to the extent the C-2F was completed, the report is insufficient to impute actual knowledge to Respondent. (Kennedy v Oswego City School District, 147 AD3d 1790 [4^th Dept 2017] and Tate v State University Construction Fund, 151 AD3d 1865 [4^th Dept 2017]). Although Petitioner claims Respondent's employees may have been in the building after his accident, even if true, is insufficient to establish that Respondent had "actual knowledge of the essential facts constituting the claim." (Diaz v Rochester-Genesee Regional Trans. Athy, 175 AD3d 1821 [4^th Dept 2019]). None of the affidavits submitted indicate that anyone from Hybrid notified Respondent's employees of the accident or Petitioner's injuries. Contrary to Petitioner's contention, the evidence submitted fails to establish that the Town acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter.

With respect to substantial prejudice, a petitioner has the initial burden to show that the municipality will not be substantially prejudiced, and then the municipality is required to rebut that presumption showing with particularized evidence. (Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455 [2016]). Petitioner asserts that there is no prejudice to Respondent since he has provided a C-2F report and affidavits from co-workers who were at the job site on the day of the accident and would be available to testify. Petitioner argues that even if Respondent had provided timely notice, construction sites are transient in nature, and the conditions existing at the time of the accident would not have been present. Petitioner has met his initial burden of showing the late notice would not substantially prejudice Respondent. Pursuant to Newcomb, the burden shifts to Respondent to provide a particularized showing of substantial prejudice caused by the late notice. The mere passage of time alone normally is insufficient to constitute substantial prejudice absent some showing of actual injury. Newcomb, supra. In addition to the fifteen month delay in notice, Respondent contends the construction site, equipment and materials are no longer present and the site was demobilized over a year ago, and no photographs of the scene or equipment have been produced. None of the witness affidavits provided by Petitioner specifically identify the equipment Plaintiff struck when he fell; describe the specific safety equipment at the site; or state whether any of the equipment still exists or was preserved. Moreover, no information regarding the whereabouts of Petitioner's supervisor, who was allegedly in charge on the day of the accident and directed Petitioner to take the actions he was performing at the time of the accident. As a result, Respondent would be substantially prejudiced in maintaining a defense on the merits.

Accordingly, based on no showing that the Respondent received actual knowledge of the facts constituting the claim in a timely matter coupled with a lack of a reasonable excuse and the substantial prejudice to Respondent, Petitioner's Order to Show Cause seeking to serve a late notice of claim is denied. (Vitko v. Simon, 179 AD3d 1515 [4^th Dept 2020]; Garguiolo v. New York State Thruway Auth ., 145 A.D.2d 915 [4^th Dept. 1988]; Friend v Town of W. Seneca, 71 AD3d 1406 [4^th Dept 2010]).

This shall constitute the Decision and Order of the Court. Submission of an Order by the parties is not necessary. The service of this Decision and Order by the Court to counsel shall not constitute Notice of Entry. DATED: July 6, 2020

/s/_________

Terrence M. Parker

Acting Supreme Court Justice