Opinion
06-16-2017
Jeffrey TATE, Claimant–Respondent, v. STATE UNIVERSITY CONSTRUCTION FUND, Respondent–Appellant.
Costello, Cooney & Fearon, PLLC, Syracuse (Daniel R. Rose Of Counsel), for Respondent–Appellant. Dolce Panepinto, P.C., Buffalo (Anne M. Wheeler of Counsel), for Claimant–Respondent.
Costello, Cooney & Fearon, PLLC, Syracuse (Daniel R. Rose Of Counsel), for Respondent–Appellant.
Dolce Panepinto, P.C., Buffalo (Anne M. Wheeler of Counsel), for Claimant–Respondent.
PRESENT: CENTRA, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:
Claimant was injured in April 2015 in a work-related accident at a construction site. Respondent had contracted for the performance of the work by an entity known as Northland, which had subcontracted with claimant's employer. We agree with respondent that Supreme Court, which did not issue a decision indicating its rationale, abused its discretion in granting claimant's application for leave to serve a late notice of claim pursuant to General Municipal Law § 50–e(5) and Education Law § 376–a(2) (see Folmar v. Lewiston–Porter Cent. Sch. Dist., 85 A.D.3d 1644, 1645, 925 N.Y.S.2d 730 ; Palumbo v. City of Buffalo, 1 A.D.3d 1032, 1033, 767 N.Y.S.2d 371 ). "In determining whether to grant such leave, the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality" ( Matter of Friend v. Town of W. Seneca, 71 A.D.3d 1406, 1407, 895 N.Y.S.2d 895 ; see generally General Municipal Law § 50–e[5] ).
Here, claimant failed to demonstrate a reasonable excuse for his failure to serve the notice of claim within 90 days of the claim's accrual or within a reasonable time thereafter (see Matter of Heffelfinger v. Albany Intl. Airport, 43 A.D.3d 537, 539, 845 N.Y.S.2d 132 ; Le Mieux v. Alden High Sch., 1 A.D.3d 995, 996, 767 N.Y.S.2d 348 ). A claimant's mistaken belief that workers' compensation is his or her sole remedy does not constitute a reasonable excuse (see Singh v. City of New York, 88 A.D.3d 864, 864, 931 N.Y.S.2d 246 ; Matter of Hurley v. Avon Cent. Sch. Dist., 187 A.D.2d 982, 983, 591 N.Y.S.2d 643 ). Furthermore, given that claimant was diagnosed with a torn right meniscus in August 2015, his assertion that he did not know the extent of his injuries does not constitute a reasonable excuse for his failure to serve or seek permission to serve a notice of claim until March 2016 (see Heffelfinger, 43 A.D.3d at 539, 845 N.Y.S.2d 132 ).
Moreover, claimant is unable to show that respondent had "actual knowledge of the essential facts constituting the claim within" the first 90 days after the accident or a reasonable time thereafter ( General Municipal Law § 50–e[5] ; see Folmar, 85 A.D.3d at 1645, 925 N.Y.S.2d 730 ; Palumbo, 1 A.D.3d at 1033, 767 N.Y.S.2d 371 ). "Contrary to claimant's contention, the accident report [prepared by Northland based on information supplied by claimant] did not impute to respondent the requisite actual knowledge inasmuch as the evidence in the record failed to establish that [Northland] was an agent of respondent" ( Kennedy v. Oswego City Sch. Dist., 148 A.D.3d 1790, 1791, 50 N.Y.S.3d 229 ; see Mehra v. City of New York, 112 A.D.3d 417, 418, 976 N.Y.S.2d 55 ; Williams v. City of Niagara Falls, 244 A.D.2d 1006, 1007, 665 N.Y.S.2d 217 ). In any event, we conclude that the accident report would have been insufficient to provide respondent with actual knowledge of the essential facts constituting the claim inasmuch as the report described the accident and claimant's injuries in only vague and general terms that differed from the detail set forth in the proposed notice of claim, and the accident report drew no connection between the accident and any liability on the part of respondent (see Kennedy, 148 A.D.3d at 1791, 50 N.Y.S.3d 229 ; Mehra, 112 A.D.3d at 418, 976 N.Y.S.2d 55 ).
Finally, we agree with respondent that claimant failed to sustain his burden of showing that a late notice of claim would not substantially prejudice respondent's interests (see Kennedy, 148 A.D.3d at 1792, 50 N.Y.S.3d 229 ; see generally Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 45 N.Y.S.3d 895, 68 N.E.3d 714, rearg. denied 29 N.Y.3d 963, 51 N.Y.S.3d 496, 73 N.E.3d 853 ). Indeed, respondent affirmatively showed that it would be prejudiced (see Folmar, 85 A.D.3d at 1645, 925 N.Y.S.2d 730 ; Le Mieux, 1 A.D.3d at 996–997, 767 N.Y.S.2d 348 ). Given our determination, we do not consider respondent's contention regarding the asserted patent lack of merit of the proposed claim.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the application is denied.