Greene v Avoca Cent. School Dist.

[*1] Greene v Avoca Cent. School Dist. 2007 NY Slip Op 52117(U) [17 Misc 3d 1122(A)] Decided on October 29, 2007 Supreme Court, Steuben County Furfure, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 29, 2007
Supreme Court, Steuben County

Terrance D. Greene and Sharon Greene, Plaintiffs,

against

Avoca Central School District, Avoca, New York, Defendant.



94,967



Learned, Reilly & Learned, LLP, Elmira (Scott J.

Learned of counsel), for Plaintiffs

Coughlin & Gerhart, LLP, Binghamton

(Keith A. O'Hara of counsel), for Defendant

Marianne Furfure, J.

This matter comes before the Court on plaintiff's motion for permission to file a late Notice of Claim. Defendant opposes the application. Counsel for both parties appeared and argued the motion. Thereafter, each side submitted additional written argument for the court to consider in support of their respective positions. The Court reserved decision.

This case arises out of an incident which allegedly occurred on February 13, 2006, on an Avoca Central School District bus while plaintiff, a camera person employed by a local television station, was filming a story concerning New York State Department of Transportation safety requirements for school buses. Plaintiff and a co-worker were allowed to ride on the school bus when school personnel performed a brake test while the bus was traveling at 10 m.p.h. and again at 20 m.p.h. Plaintiff alleges that when the bus driver applied the brakes at 20 m.p.h., it caused him "to fly forward", injuring his right knee as a result.

General Municipal Law Section 50-e requires that in any tort case filed against a municipality, the claimant must file a Notice of Claim within 90 days after the claim arises, as a condition precedent to the action. The purpose of this requirement is to afford the municipal defendant an opportunity to investigate the circumstances of the accident and evaluate the merits of the claim while information is available (Matter of Light v. County of Nassau, 187 AD2d 720 [2nd Dept. 1992]). In this case, based on plaintiff's claim that he was injured on February 13, 2006, a Notice of Claim should have been filed by May 14, 2006. Plaintiff filed this motion for permission to file a late Notice of Claim on August 28, 2006, more than three months after the 90 day time expired.

Supreme Court has broad discretion in determining whether or not to allow filing of a late [*2]Notice of Claim (Lemma v. Off Track Betting Corporation, 272 AD2d 669, 670 [3rd Dept. 2000]). In exercising that discretion, the court must consider whether the claimant has shown a reasonable excuse for the delay in filing the Notice of Claim, whether the municipality had actual or constructive notice of the essential facts constituting the claim within 90 days of its accrual or within a reasonable thereafter, and whether the municipality would suffer substantial prejudice in maintaining its defense on the merits as a result of the delay (Matter of Courtney Nicole R v. Moravia Central School District, 28 AD3d 1134 (4th Dept. 2006]; Porcaro v. City of New York, 20 AD3d 357 [1st Dept. 2005]; Hilton v. Town of Richland, 216 AD2d 921 [4th Dept. 1995]). The presence or absence of any one factor is not dispositive of the issue (Matter of Porcaro v. City of New York, 20 AD3d 357, 358 [1st Dept. 2005]; Matter of Esposito v. Carmel Cent. School Dist., 187 AD2d 854, 855 [3rd Dept. 1992]). However, leave to file will not be granted for a patently meritless claim (Matter of Catherine G. v. County of Essex, 3 NY3d 175, 179 [2004]).

In this case, plaintiff states that he failed to file the Notice of Claim within 90 days of the incident because he was unaware of the extent of his injuries until after the 90-days expired. Plaintiff claims that, even though he did not believe he was injured when the accident occurred, he did go to a hospital three days later because he was experiencing pain in his right knee. The hospital referred him to an orthopedic surgeon. He had an MRI examination of his knee on March 29, 2006. He underwent knee surgery on May 24, 2006, to repair a tear of his medial meniscus. Only after the pain failed to lessen six weeks later, did Plaintiff begin to suspect that his injury was significant and long-term. He consulted with an attorney on August 8, 2006, and filed his motion for permission to file a late Notice of Claim 20 days later. These facts do constitute a reasonable excuse for plaintiff's failure to timely file a notice of claim (Greene v. Rochester Housing Authority, 273 AD2d 895 [4th Dept. 2000]; More v. General Brown Central School District, 262 AD2d 1030 [4th Dept. 1999]).

The court must next consider whether the school district had actual or constructive notice of the essential facts constituting the claim within 90 days or a reasonable time thereafter. "Knowledge of the injuries or damage claimed by a plaintiff, rather than mere notice of the underlying occurrence, is necessary to establish actual knowledge of the essential facts of the claim within the meaning of General Municipal Law Section 50-e(5)" (Santana v. Western Regional Off-track Betting Corp., 2 AD3d 1304 [4th Dept. 2003] citing Lemma v. Off Track Betting Corp., 272 AD2d 669 [3rd Dept. 2000]). Knowledge of the essential facts of the claim is a factor that should be given "great weight" (Matter of Riordan v. East Rochester Schools, 291 AD2d 922, 923 [4th Dept. 2002], citing Kalendra v. Buffalo Mun. Hous. Auth., 203 AD2d 937 [4th Dept. 1994]).

Plaintiff claims that defendant had actual notice of the essential facts constituting the claim because two of plaintiff's employees were present on the bus when plaintiff injured his knee. Plaintiff also claims that on the same day he explained to the School Superintendent what had occurred and that plaintiff had injured his knee. The School Superintendent denies that plaintiff told him about the incident or that the school ever received a copy of an accident report which plaintiff filed with his own employer the day after the accident.

The presence of a school district employee when an accident occurs on school property does not provide notice of the essential facts constituting the claim when no injuries were reported as a result of the accident (Matter of Spaulding v. Cobleskill Richmond Cent. School Dist., 289 AD2d 860, 861 [3rd Dept. 2001]). In this case, plaintiff appeared to be uninjured after he fell out of his seat, told school employees that he had "banged (his) knee" but that he "was okay", returned to his seat [*3]and continued with the news report, and returned a day or two later for additional filming, carrying tripods and other camera equipment and told a school employee at that time that he was uninjured. Even though school district employees were undeniably present when plaintiff fell, that is insufficient to establish that defendant had actual knowledge of the essential facts constituting the claim within 90 days of the incident.

However, the statute allows leeway in the 90-day rule by providing that the municipality may acquire actual knowledge of the essential facts "within a reasonable time" after the 90-day limit (Matter of Hayes v. Peru Cent. School Dist., 281 AD2d 794, 795 [3rd Dept. 2001]). The purpose of General Municipal Law Section 50-e

". . . is to protect the municipality from unfounded claims and to ensure that it has an adequate opportunity to explore the merits of the claim while the information is still readily available' " (Matter of Porcaro v. City of New York, 20 AD3d 357 [1st Dept. 2005, citing Teresta v. City of New York, 304 NY 440, 443 [1952]). The statute is remedial in nature and should be liberally construed (Camacho v. City of New York, 187 AD2d 262, 263 [1992]).

In this case, the 90-day limit expired on May 14, 2006. Plaintiff's motion was filed August 28, 2006, approximately three and a half months after the expiration of the 90-day limit. Late filing has been allowed in cases where the delay was a few days or a few weeks (Sykes v. Buffalo Munic. Hous. Auth, 269 AD2d 848 [4th Dept. 2000]; Weiss v. City of New York, 237 AD2d 212,213 [1st Dept. 1997]; Rosenblatt v. City of New York, 160 AD2d 927, 928 [1st Dept. 1990]). However, where the site of an accident had remained unchanged and defendant's ability to investigate the accident site had not been hindered, a six-month delay between expiration of the 90-day limit and claimant's motion has been determined to be "comparatively short" (Reed v. City of Lackawanna, 221 AD2d 967, 968 [4th Dept. 1995]).

Here, the passage of time has not hindered defendant's ability to investigate the claim. At least three of defendant's employees were eye-witnesses to the event and have signed sworn affidavits reciting their recollection of events. There is no claim, nor evidence presented, to suggest that these witnesses are now unavailable nor that their memories of the event have deteriorated (Matter of Mahan v. Board of Educ. of Syracuse City School Dist., 269 AD2d 834, 835 [4th Dept. 2000]). Plaintiff's claims of negligence, carelessness and recklessness are not based on the physical condition of the bus, but rather on the manner in which it was operated and the warnings given by defendant's employees. Therefore, any changes in the physical condition of the bus is not material. While defendant may not have had actual notice of the essential facts constituting the claim within 90 days of its accrual, the notice provided here, approximately six months after the incident was within a reasonable time thereafter.

Plaintiff must also show that the municipality is not prejudiced by the lack of opportunity " . . . to conduct the type of prompt and thorough investigation that would have been warranted had (defendant) been aware of (plaintiff's) alleged injuries" (Matter of Spaulding v. Cobleskill Richmond Cent. School Dist., 289 AD2d 860, 861 [3rd Dept. 2001]). Delay in serving a notice of claim beyond the 90-day period must result in substantial prejudice to defendant to defeat an application for late notice (Hilton v. Town of Richland, 216 AD2d 921, 922 [4th Dept. 1995]). In evaluating whether the delay has hampered defendant's ability to investigate the claim and mount a defense, courts have considered whether the physical conditions of the accident scene have changed (Matter of Gizzi v. [*4]City of Troy, 210 AD2d 644, 645 [3rd Dept. 1994]; Myette v. New York City Hous. Auth., 204 AD2d 54, 55 [1st Dept. 1994]), witnesses have forgotten the details of the event or are no longer available, and whether defendant's ability to obtain medical evidence has been compromised (Santana v. Western Regional Off-Track Betting Corp., 2 AD3d 1304, 1305 [4th Dept. 2003]).

In this case, defendant's claim that it will suffer prejudice because it could not have anticipated that a claim would be made against it is unavailing because none of the factors that would support a finding of prejudice exist. There was no claim that any physical conditions had changed, all eye-witnesses have executed affidavits of the event and are still available to testify, and plaintiff's medical condition has been documented through hospital records, MRIs, and independent medical examinations. Therefore, defendant is not substantially prejudiced by the delay.Finally, defendant claims that plaintiff should be barred from filing a late Notice of Claim because plaintiff's claim is totally without merit. Defendant argues that plaintiff assumed the risk of injury by participating in the school bus brake test, after having been warned on more than one occasion prior to the test that the bus would stop abruptly and suddenly. Defendant claims that plaintiff assumed the risk of injury when he asked to participate in the brake test.

Assumption of risk can be divided into two distinct categories. The first category is based on the statutory concept of "culpable conduct attributable to the claimant" (CPRL 1411). "It is akin to comparative negligence; it does not bar recovery, but diminishes recovery in the proportion to which it contributed to the injuries" (Lamey v. Foley, 188 AD2d 157, 163 [4th Dept. 1993]). The second doctrine, referred to as primary assumption of the risk, is based not on the concept of comparative fault, but rather on the measure of defendant's duty of care to the plaintiff (Weller v. Colleges of the Senecas, 217 AD2d 280, 283 [4th Dept. 1995]; Lamey v. Foley, 188 AD2d 157, 163 [4th Dept. 1993]). Primary assumption of the risk is either expressed or implied and limits or reduces the tortfeasor's duty of care to the plaintiff (Lamey v. Foley, 188 AD2d 157, 163 [4th Dept. 1993]).

" Express' assumption of the risk involves an agreement between the parties in advance resulting in the conclusion that the defendant need not use reasonable care for the benefit of the plaintiff and will not be liable for the consequences. Implied' assumption of the risk is not based upon express contract but upon the plaintiff's voluntarily encountering the risk of harm from defendant's conduct with full understanding of the possible harm." (PJI3d 2:55 [2006]; Peebles v. Circuit City Stores, Inc., 2003 WL 21976402 [S.D.NY 2003]).

In this case, there is no evidence that plaintiff expressly agreed to assume the risk of injury involved in participating in the school bus brake test (Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161, 162 [1985]). While he asked to be allowed on board the bus during the brake test procedure and the particulars of the test were explained to him, he did not sign a waiver releasing the school district from it's duty of due care, nor is there evidence that plaintiff expressly agreed to ride the bus at his own risk (Arbegast v. Board of Educ. of S. New Berlin Cent. School, Id. at page162). Therefore, this is not an express assumption of the risk claim which would completely bar any recovery by the plaintiff.

Plaintiff claims that the doctrine of implied primary assumption of the risk applies only to injured parties who participate in recreational activities or sporting events and is not applicable to this accident. Defendant argues otherwise. Even if the doctrine applies to this accident, the question of whether a plaintiff assumed the risk of harm from defendant's conduct is generally a jury question (Samuels v. High Braes Refuge, Inc., 8 AD3d 1110, 1111 [4th Dept. 2004]). Plaintiff claims that, having never participated in a school bus brake test, he did not have a full appreciation for how [*5]suddenly and abruptly the bus would stop in the course of the brake test. Plaintiff claims his lack of appreciation for the risk involved in the test was demonstrated by defendant's affidavits which aver that plaintiff had to be told to sit down prior to the start of the test, although everyone else who had previously engaged in these tests knew enough to remain seated.

Regardless of whether plaintiff's conduct constitutes comparative negligence or an assumption of the risk, the Court cannot say, as a matter of law, that plaintiff's claim is patently meritless (Curtis v. Town of Inlet, 32 AD3d 1311 [4th Dept. 2006]). At this early stage of the action, plaintiff has alleged sufficient facts to allow the case to proceed.

For the reasons stated above, plaintiff's application to file a late Notice of Claim is granted.

Plaintiff's attorney to submit order.

Dated:

E N T E R ,

__________________________________

Hon. Marianne Furfure

Acting Supreme Court Justice