Garcia v Metropolitan Transporation Auth.
Annotate this CaseDecided on September 13, 2012
Supreme Court, Kings County
Edwin Garcia, Petitioner,
against
Metropolitan Transporation Authority, NEW YORK CITY TRANSIT AUTHORITY and MTA CAPITAL CONSTRUCTION CO., Respondents
15016/12
Attorney for the Petitioner
Brian P. Hurley, Esq.
Kelner and Kelner
140 Broadway - 37th Floor
New York, New York 10005
(212) 425-0700
Attorney for the Respondents
Ivan C. Torres, Esq.
Smith Mazure Director Wilkins Young & Yagerman, P.C.
111 John Street
New York, New York 10038
(212) 964-7400
Francois A. Rivera, J.
By order to show cause and petition filed on July 24, 2012, Edwin Garcia, the petitioner, seeks an order pursuant to General Municipal Law § 50-e(5) granting leave to file three late notices of claim nunc pro tunc against the Metropolitan Transportation Authority, the New York City Transit Authority and MTA Capital Construction Co., the respondents. The respondents have jointly opposed the petition.
BACKGROUND
Petitioner claims that on October 14, 2011, he injured his left ankle when he tripped and fell on a brace in a doorframe of an electrical supply room located at the Kings Highway/East 16th Street subway station serving the B and Q subway lines. At that [*2]time, he was employed as a construction electrician for Smalls Electrical Construction, Inc., the subcontractor to Granite Construction Northeast, Inc., the general contractor on the project.
MOTION PAPERS
Petitioner's motion papers consist of the instant order to show cause, a verified petition, an affirmation of petitioner's counsel and four annexed exhibits labeled A through D. Exhibit A is a report denominated "Supervisor's Accident Investigation Report". Exhibit B, C and D are the three individual proposed notices of claim which petitioner seeks leave to serve nunc pro tunc on respondents Metropolitan Transporation Authority, New York City Transit Authority and MTA Capital Construction Co., respectively.
The respondents have opposed the petition with an affirmation of their counsel.
The petitioner has replied to respondents' opposition with his counsel's affirmation.
LAW AND APPLICATION
General Municipal Law § 50-e(5) pertains to an application for leave to serve a late notice of claim and provides in pertient part as follows:
Application for leave to serve a late notice. Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one of this section. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one of this section or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim ...
The purpose of the statutory notice of claim requirement (General Municipal Law § 50-e) is to afford the public corporation "an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available" (Palmer v Society for Seamen's Children, 88 AD3d 970, 971 [2nd Dept 2011] citing Teresta v City of New York, 304 NY 440, 443 [1952]). To that end, the statute requires that the notice set forth "the time when, the place where and the manner in which the claim arose" (General Municipal Law § 50-e [2]; see Brown v City of New York, 95 NY2d 389, 393 [2000]). The requirements of the statute are met [*3]when the notice describes the accident with sufficient particularity so as to enable the defendant to conduct a proper investigation thereof and to assess the merits of the claim (Palmer v Society for Seamen's Children, 88 AD3d 970, 971 [2nd Dept 2011]).
The statute affords the court discretion to extend the time to serve a late notice in a proper case and, upon such application, permits the court to consider "all other relevant facts and circumstances" (General Municipal Law § 50—e[5]).
Indeed, "General Municipal Law § 50—e(5), which permits the court in its discretion to extend the time for filing a notice of claim, is remedial in nature, and so should be liberally construed" (Camacho v City of New York, 187 AD2d 262 [1st Dept 1992] citing Matter of Santana v City of New York, 183 AD2d 665).
In determining whether to grant leave, the court must consider whether the petitioner had a reasonable excuse for her delay, whether the delay prejudiced the municipality's defense and whether the municipality acquired "actual knowledge of the essential facts constituting the claim" within 90 days after the claim arose or within a reasonable time thereafter (see General Municipal Law § 50-e(5); Strauss v New York City Transit Authority, 195 AD2d 322 [1st Dept 1993]). It is plaintiff's burden to prove each of these elements, including lack of prejudice to the defendant (See Delgado v. City of New York, 39 AD3d 387 [1d 2007]).
The instant petition was filed on July 24, 2012, approximately nine months after the alleged accident. Petitioner's verified petition alleges the following salient facts. He resides in the State of Pennsylvania and had not spoken to an attorney about his accident in New York until April of 2012. It was only then that he learned for the first time of the potential claims he could assert against the respondents and of the General Municipal Law § 50-e notice of claim requirements. He cooperated in the preparation of a report of his accident which was completed on October 19, 2011. He contends that the aforementioned Supervisor's Accident Investigation Report was submitted to either the Metropolitan Transporation Authority or the New York City Transit Authority, or both. He does not affirmatively state when and how the report was provided to the respondents but submits that the contractors on the project were contractually obligated to provide such a report to the respondents. He further contends that the respondents receipt of the Supervisor's Accident Investigation Report constitutes actual notice of the facts of his accident.
The respondents contend that petitioner has not shown a reasonable excuse for the failure to file a timely notice of claim nor established that the respondents acquired actual notice of the claim. However, they neither admit nor deny receipt of the Supervisor's Accident Investigation Report. Instead, they contend that even if it had been received it would not provide notice of petitioner's claim. It fails to adequately notify because it merely recites certain facts of the underlying occurrence. However, it does not notify respondents of the claims of negligence. They further contend that the instant petition with accompanying proposed notices of claim is the first time that they became aware of [*4]the petitioner's alleged claims. They also contend that the petitoner's unexcused delay has prejudiced their ability to investigate petitoner's claims and to defend themselves.
The Court agrees that petitioner's alleged ignorance of the General Municipal Law § 50-e notice of claim requirements does not constitute a valid excuse (Matter of Catuosco v City of New York, 62 AD3d 995, 997 [2nd Dept 1987]; citing Figueroa v New York, 92 AD2d 908 [2nd Dept 2009]). However, absence of an acceptable excuse is not necessarily fatal. Rather, all relevant factors are to be considered, including the prejudice to the municipality and whether it obtained actual knowledge within the 90-day statutory period or shortly thereafter (see Cicio v City of New York, 98 AD2d 38 [2nd Dept 1983] citing Weinzel v County of Suffolk, 92 AD2d 545 [2nd Dept 1983]).
The accident report annexed to petitioner's motion papers provides only sparse facts pertaining to his accident and provides no notice of petitioner's claim of liability against the respondents. The court agrees with the respondents' contention that knowledge of underlying facts does not constitute notice of a petitoner's claim of the respondents' tort liability (see Tavarez v City of New York, 26 AD3d 297 [1st Dept 2006] citing Chattergoon v New York City Hous. Auth., 161 AD2d 141, 142 [1st Dept 1990], affd 78 NY2d 958 [1991]). Assuming arguendo that the respondents received the accident report in question, the report does not give notice of petitioner's claim of the alleged negligence of the respondent. Therefore, the Court finds that the respondents were not apprised of the claims against them within 90 days after the alleged accident or within a reasonable time thereafter. Furthermore, the petitioner has failed to show that the delay did not cause prejudice to the respondents.
Under these circumstances, it would be an abuse of discretion to grant the petitioner permission to file a late notice of claim nunc pro tunc.
Petitioner's application for an order granting leave to file a late notice of claim pursuant to General Municipal Law § 50-e(5) is denied and the petition is dismissed.
The foregoing constitutes the decision and order of this court
Enterx
J.S.C.
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