Matter of Bonaguro v City of New York
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Matter of Bonaguro v City of New York 2013 NY Slip Op 33826(U) October 21, 2013 Supreme Court, Kings County Docket Number: 17160/12 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Page 1of131 . .. . SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: PART 16 --- - - - -------- - - ----- ------------x In the Matter of the Application of JOHN BONAGURO, Decision and order Petitioner, Index No. 17160/12 - against - THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION AND THE NEW YORK CITY DEPARTMENT OF SANITATION, Respondents, PRESENT: HON.. LEON RUCHELSMAN October 21, 2013 - ---------x The petitioner moves pursuant to General Municipal Law section §50-e seeking to serve a late notice of claim nun pro tune. respondents oppose the motion. parties and arguments held. Papers were The submitted by the After reviewing the arguments of all parties this court now makes the following determination. This is a lawsuit which arises following an accident that occurred on February 14, 2012 when the petitioner was working at a construction project at the Creek Wastewater Treatment Plant in Kings county. As a result of the accident sustained serious injuries. The motion seeking to file a late notice of claim has now been filed. respondents had actual knowledge demonstrate any prejudice. the petitioner Petitioner argues that the of the accident and cannot The respondent's counter the excuses presented are insufficient and in any event do not warrant the granting of the request at this late juncture. [* 2] 1716012012 Decis100 and order dtd 10121/13 Page 2 of ~31 Conclusions of Law When claims against certain public corporations arise, a plaintiff is required to provide a timely notice of claim to that corporation (§..§.§., GML §50-e) . Aside from wrongful death actions, the notice of claim must be served upon the public corporation within ninety days of the date of the alleged incident (see, GML §50-e maintains ( 1) (a)} . It is well settled that the court discretion to grant leave to serve a late notice of claim but in granting said leave the court should consider certain factors GML §50-e (5)). (~, Thus, plaintiff should demonstrate that the entity to be sued should have generally received actual knowledge of the lawsuit within ninety days or shortly thereafter and that the delay would not substantially prejudice merits of the lawsuit the entity in defending the (Bovich v. East Meadow Public Library, 16 AD3d 11, 789 NYS2d 511 [2d Dept., 2005]). The first issue the court should consider when deciding to allow a late notice are the circumstances surrounding the failure to file a timely notice. In this case, the petitioner did not secure legal counsel until after the period specified in GML §50e (5) had already passed. Even if that is deemed unreasonable, that is not the determinative factor. It is true that where petitioner has failed to present a reasonable excuse for the delay in filing a notice of claim, that factor should not, in and of itself, prove fatal to the request {Sanchez v. Country of Westchester, 146 AD2d 2 [* 3] 17160!2012 Decision. and or::ter dtd 10/21n3 620, Page 3 of 131 536 NYS2d 529 [2d Dept., 1989]). Therefore, if the circumstances surrounding the case would persuade the court to allow a late filing then the absence of a reasonable excuse will be excused. In the case at bar, there really is no dispute that the respondents had actual notice of the claim. Specifically, the accident was witnessed by a co-worker and the petitioner sought medical attention at the respondent's facility at the construction site and that a medical claim was made to the respondent or a codefendant. Courts have established that "the filing of an accident report with the employee's agency or department imported actual knowledge to the municipality which, in conjunction with other circumstances present, warranted the granting of leave 11 (Ceselli v. City of New York, 105 AD2d 251, 483 NYS2d 401 [2d Dept., 1984]; see also, Lucas v. New York, 1982]) . Likewise, the 91 AD2d 637, filing of 456 NYS2d 816 [2d Dept., a medical claim provides is whether there will sufficient requisite knowledge. The final prong in the test be substantial prejudice to the respondent in defending the merits of the lawsuit if the court allows this late notice. In this case there will be no prejudice to the respondent if this petition is granted. The respondent continues to have an opportunity to readily investigate the area around where the accident allegedly took place. Indeed, other than vague, general assertions, there is 3 Printed_ 21512015 [* 4] 17160/2012 Decision and order dtd 10121113 Page 4 of 131 nothing concrete establishing any prejudice. For example, there has been nothing introduced that petitioner could not properly investigate -the area where plaintiff was injured since conditions may have since changed (Cattell v. Town of Brookhaven, 21 AD3d 896, 800 NYS2d 603 [2d Dept., 2005]) or any other substantive offer. Therefore, based on the foregoing the motion seeking to serve a late notice of claim is granted. So ordered. ENTER: DATED; October 21, 2013 Brooklyn, N.Y. Hon. Leon Ruchelsman JSC 1- -~1C:'. .. -~< 1,,__ 4 Printed: 21512015
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