Matter of Romeo v Long Is. Power Auth.
Annotate this CaseDecided on October 2, 2013
Supreme Court, Nassau County
In the Matter of the Claim of William Romeo AND ANNE ROMEO, Petitioner,
against
Long Island Power Authority, Respondent.
8274-13
To:
Attorney for Petitioner
SULLIVAN PAPAIN BLOCK MCGRATH & CANNAVO P.C.
120 Broadway
New York, New York 10271
Attorney for Respondent
LAZER, APTHEKER, ROSELLA & YEDID, P.C.
225 Old Country Road
Melville, New York 11747
Arthur M. Diamond, J.
The following papers having been read on this motion:
Order to Show Cause.................................1
Opposition...................................................2
Reply............................................................3
Petitioners' application for leave to file a late notice of claim against the respondent Long Island Power Authority is denied in its entirety.
Petitioners' assert that they lost their residence in Massapequa on October 30, 2012, which is on the South Shore of Nassau County, due to an electrical fire caused by salt water coming into contact with the electrical box and live wire in their house during Hurricane Sandy. They claim that respondent's failure to de-energize the homes in Massapequa caused the fire to petitioners' home. In support of the application is the affidavit of petitioner Anne Romeo, which states, in sum and substance, that petitioners were unaware of the cause of the fire, namely that LIPA failed to de-energize or suspend provision of electricity to Massapequa, until petitioner learned about the failure [*2]from various news outlets several months after hurricane Sandy. Petitioner states that they spent the months following the storm negotiating with various agencies, including FEMA, seeking relief. (Order to Show Cause, Affidavit of Anne Romeo, pp. 2-3). No documentation has been submitted to verify this claim. Petitioners' counsel claims that respondent had actual notice of the petitioners claim because of the seventeen (17) notice of claims that the counsel's law firm filed against defendant whose homes were lost by fire. (Order to Show Cause, Affirmation fo Counsel, p.8). Counsel neglects to state, as raised by defense counsel, that these notice of claims were filed for homes that burned in Breezy Point, as well as other residences of the Rockaway Peninsula. Noticeably absent, is the mention of any notice of claim filed for any residences in Massapequa. Petitioner also relies upon the Interim Report issued by the Moreland Commission released on January 7, 2013, which indicated that Hurricane Sandy was not an un-anticipated storm event, and that established protocol is for utilities to de-energize in areas in anticipation of significant flooding. (Order to Show Cause, Exhibit I, p.20). Also, petitioner contends that LIPA performed visual inspections to homes throughout Nassau County, including Massapequa, and therefore had notice of the fire which caused the destruction to petitioners' home.
The respondent opposes the instant application claiming that petitioners did not provide a reasonable excuse for the late filing of the notice of claim. The Moreland Report was issued within 90 days from the date of Hurricane Sandy. The petitioners' application is devoid of any proof of loss and proof of causation having been submitted to the "various agencies" and FEMA to support their claim of spending several months negotiating with them. Petitioners' waited over five and a half months after the 90 day period expired to bring this petition and there is no excuse for that delay. Second, the notices of claims filed against respondent for residences lost to fire on the Rockaway Peninsula does not give actual notice of the fire damage to petitioners' home in Massapequa more than 18 miles away allegedly caused by the defendant's failure to de-energize the area. There was no evidence of fire damage to the general neighborhood in Massapequa, and there is no indication that the fire at petitioner's home was caused by the failure to de-energize. Respondent points out that there is actual substantial prejudice to respondent LIPA because of petitioners' delay to file a notice of claim, namely the house and its remains are no longer there for LIPA to inspect to make a determination if the fire was caused by the failure to de-energize or something else. All physical remains have been removed from the premises by petitioners. LIPA contacted the Nassau County Fire Marshall's office and found that there was no fire investigation conducted at the site. Furthermore, petitioners application fails state whether a prompt inspection of the premises was conducted by an insurance company or adjuster before the land was cleared of all physical remains.
It is well settled that "the key factors in determining whether leave to serve a late notice of claim should be granted are whether the claimant has demonstrated a reasonable excuse for the delay, whether the defendant acquired actual knowledge of the essential facts constituting the petitioners' claim within 90 days of its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the respondent in maintaining a defense on the merits" (Affleck v. County of Nassau, 240 AD2d 569; see, Matter of Buddenhagen v. Town of Brookhaven, 212 AD2d 605; General Municipal Law 50-e[5]).
The court finds that the petitioners failed to proffer a reasonable excuse for waiting eight and a half months after the incident to file a notice of claim other than a general claim that they were not aware of what was going on, and negotiations with government agencies. Besides the lack of [*3]documentation evidencing any communications with FEMA and other "various agencies," petitioners have failed to articulate why said negotiations would prevent petitioners from filing a notice of claim other than the lack of knowledge to do so. Unfortunately, ignorance of the statutory requirement for serving a timely notice of claim is not an acceptable excuse for the delay. (Saafir v. Metro-North Commuter Railroad Co., 260 AD2d 462; In the Matter of Ernest Ealey, 204 AD2d 720).
Nor has petitioners demonstrated that respondent had received "actual knowledge of the essential facts constituting the claim" or that the delay will not prejudice the respondent (General Municipal Law §50-e[5];Matter of Guminiak v. City of Mount Vernon Indus. Dev. Agency, 68 AD3d 1111 [2nd Dept. 2009]). Boot strapping notices of claims for fires to homes that occurred on the Rockaway Peninsula more than 18 miles away from petitioners' home in Massapequa cannot serve as actual notice of petitioners' claim that their fire damage was caused by respondent's failure to de-energize power in Massapequa. Especially, where there is no indication that the general neighborhood in Massapequa was effected by fire caused by the respondent's failure to de-energize power. If the court were to accept petitioners' premise, then LIPA would be placed on actual notice for any fire to a residence that occurred along the entire South Shore of Long Island because of claims filed in the Rockaway Peninsula. Furthermore, the fact that petitioners' counsel filed prior notices of claims against the respondent does not give actual notice of the underlying claim in this application. A defendant must have "knowledge of the facts that underlie the legal theory or theories on which liability is predicated" in the proposed notice of claim, and not merely some general knowledge that a wrong has been committed. (Matter of Iacone v. Town of Hempstead, 82 AD3d 888, 889 [2nd Dept. 2011]). In the Matter of Iacone v. Town of Hempstead, the Appellate Division Second Department held that prior complaints from residents to install a traffic signal at the intersection where a motor vehicle accident occurred did not give actual timely knowledge of the occurrence of the subject accident, the cause of that accident, or notice of any connection between the petitioners' injuries and the defendant's negligence. Likewise, prior notices of unrelated claims filed against respondent, and even the Interim report of the Moreland Commission, does not provide the respondent LIPA with actual knowledge of the facts of petitioners' claim other than some general knowledge that a wrong has been committed by defendant's failure to de-energize power. Causation is the key issue here, and because petitioners' delayed in filing a notice of claim for eight and a half months, respondent cannot investigate the cause of petitioners' fire since the physical remains have been removed from the premises. (Matter of Iacone, supra, at 889). Petitioner's eight and a half month delay deprived defendant the opportunity to conduct a meaningful investigation causing substantial prejudice to respondent. (Chechelnitskaya v. City of New York, 293 AD2d 700 [2nd Dept. 2012]).This constitutes the decision and order of this Court.
E N T E R
DATED: October 2, 2013
_________________________________
Hon. Arthur M. Diamond
J. S.C.
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