Iemetti v Mta Capital Constr. Co.

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Iemetti v Mta Capital Constr. Co. 2012 NY Slip Op 30215(U) January 27, 2012 Sup Ct, NY County Docket Number: 113639/11 Judge: Cynthia S. Kern Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. lNNED ON 1131120 [* 1] SUPREME COURT OF THE STATE OF NEW YORM - NEW YBRK COUNTY M O T I O N DATE MOTION SEQ. N O . M O T I O N CAL. N O . were read on this motion to/for The following papers, numbered 1 t o , PAPERS NUMBERED Notice of Motion/ Order to Show Cause Answering Affidavits - Exhibits -. Affidavits - Exhibits ... - .... I I Replying Affidavits Cross-Motion: I - .- n Yes . L.1 No Upon the foregoing papers, I is ordered that this motion t ._r- [* 2] SUPREME COURT OF THE STATE Ob NEW YORK COUNTY OF NEW YORK: Part 55 SALVATORE IEMETTI, Petitioner, Index No. 113639/11 -against- DECISION/ORDEK MTA CAPITAL CONSTRUCTION COMPANY, LONG ISLAND RAILROAD, NEW Y O N CITY TRANSIT AUTHORITY AND THE METROPOLITAN TRANSPORTATION AUTHORITY, JAN 30 2012 Respondents. HON. CYNTHIA S. KEHN, J.S.C. Rccitation, as required by CPLR 2219(a), of thc papers considered in the review of this motion ¬or : Papers Notice of Motion and Affidavits Annexed .................................... Notice of Cross Motion and Answering Affidavits ....................... Affirmations in Opposition to the Cross-Motion .......................... - . Replying Afiidavits. ..................................................................... Exhibits,..................................................................................... Numbered 1 2 3 Petitioner commenced the instant action to recover damages for personal injuries he allegcdly sustaincd when he was struck by a rubber pipe (also knows as a slick line ) in the course of his crnployment. Petitioner now seeks to serve a late Notice or Claim against MTA Capital Construction Company, Long Island Railroad, New York City Transit Authority and the Metropolitan l ransporlation Authority (collcctively the respondents7 ).For the reasons set forth below, his motion is granted. The relevant facts are as follows. On May 27, 201 1, petitioner was excavating caverns [* 3] for underground railroad tunnels underneath 49 Street and Madison Avenue in New York City. While he was working, a scooper/mucker machine being operated by another employee picked up a 5 inch 100 foot long rubber pipe which was buried undcrneath the muck. When it came up, it struck petitioner s left ankle and caused him to fall to the ground. Co-workers had to use a crow bar to remove the pipe from pinning petitioner s ankle against the wall. An MI A Supervisor s Accident Investigation Report was completed documenting the accident. Prospcctive plaintiffs must serve a Notice of Claim against a municipal entity within ninety days after the claim arises. See General Municipal Law ( GML ) $50-e(l)(a). However, courts have broad discretion to grant leave to serve a latc Notice of Claim pursuant to GML $50e(5). In determining whether to grant leavc, the court must consider whether the petitioner had a reasonable excuse for his delay, whether the delay prcjudiced the municipality s defense and whether the municipality acquired actual knowledge of the cssential facts constituting the claim within ninety days after the claim arose or within a reasonable timc thereafter. See GML §50-(e)(5);Strauss I) New York City Transit Aulhority, 195 AD2d 322 (1 st Dept 1993). It is plaintiffs burden to prove each of these elements, including lack ofprejudice to the defendant. See DeZgudo v City qf New York, 39 A.D.3d 387 (1 Dept 2007); Ocasio v New York Cily Heulth andHospiluls Corporation, 14 A.D.3d 361 (1 Depl2005). Although no onc factor is dispositive, thc court must give particular consideration to whether the defendant acquired actual knowledge of the claim within the 90-day statutory period or shortly thereafter. See Justiniano v New York Ct Housing Authority Police, 191 A.D.2d 252 (1 Dept 1993). The lack of a iy reasonable excuse alone is not fatal. See Velusquez v C t of New York Heulth and Hospitals iy C orp., 69 A.D.3d 441 (1 lI)ept 2010). 2 [* 4] Petitioner f d s to satisfy the first factor, the existence of a reasonable excuse. Although petitioncr states that it was hard for him to get around aftcr the accident, he has failed to provide evidence demonstrating that his injuries wcre so severe that he could not consult with an attorney. Moreover, petitioncr s excuse that he did not know that he could bring a lawsuit against respondents is also not reasonable because ignorance of the law and, in particular, of the 90-day deadlinc for filing a Notice of Claim, does not constitute a reasonable excuse. ,Tee Gaudici v Cily qf New York, 235 A.D.2d 228 (1 Dept 1997). Nonetheless, the lack of such an excuse is not fatal. ,Tee Velusquez, 69 A.D.3d 44 1. Respondents, however, havc acquired actual knowledgc of the claim within the statutory period or shortly thereafter. Within a month of the incident, a Supervisor s Accident Lnvestigation Report was completed by an MTA supervisor rcgarding this incident which specifically alerted rcspondents to the f x t s forming the basis of petitioner s claim - that while petitioner was working in an underground cavern, a mucking machine picked up a buried slick line pipe that was not known to be thcrc and caught petitioner s left ankle, pinning it betwcen a slick line pipe and the cavern wall causing injury. Because the report containcd details sufficient to fbrnish notice o f a claim of negligence, respondents acquired actual knowledge of the facts underlying plaintiffs claim. See Ruo v. Triborough Bridge and Tunnel Authority, 223 A.D.2d 374 (1 qt Dept 1996). Felice v Eustporl/South Munor Cent. School Disl., 50 A.D.3d 138 (2d Dept 2008), the case that respondcnts cite for the proposition that an accident report is insufficient to give actual notice, is distinguishable. In Felice, the court found that the accident report which merely stated that the petitioner, a high school cheerleader, was dismounting in a vertical position from an 3 [* 5] extended stunt and landed awkwardly on her right foot which causcd her to break a bone and require surgery did not provide cssential facts constituting the plaintiffs claim. Thc plaintiff in Felice alleged in her notice of claim facts that werc not included in the accident report such as that the basers were too small to catch a Ylyer such as petitioner and that petitioner had made known to the coach hcr dissatisfaction with thc tcam members assigned as basers . See i at d 150. The instant action is distinguishable from Felice in that unlike in Felice, the M TA accident rcport, as discussed more h l l y above, provided a detailed account of thc cssential facts that constitute the claims madc in petitioner s notice of claim. Finally, respondcnts have not been prejudiccd by the slight dclay in filing thc Notice of Claim. Because respondents had actual knowledge of the claim, they has had the opportunity to conduct an investigation of the incident in a timely manner. Petitioner brought his petition approximately three months after the expiration of the statutory period, which is a reasonable time thereafter. See GML tj50-(e)(5); see ulso March v. Wuppinger,29 A.D.3d 998 (2nd Dept 2006) (dclay of eleven months was held to be a reasonable time after cxpiration of 90 day period). Accordingly, petitioner s motion to serve a late notice of claim is granted. This constitutcs the decision and order of the court. J.S.C. 4

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