Ballantine v Pine Plains Hose Co., Inc.
Annotate this CaseDecided on June 22, 2017
Supreme Court, Dutchess County
Luane Ballantine, Plaintiff,
against
Pine Plains Hose Company, Inc., and NORTHERN DUTCHESS PARAMEDIC, INC., Defendants.
50599/2017
CHRISTINA KILLERLANE, ESQ.
MEAGHER & MEAGHER, P.C.
Attorneys for Plaintiff
111 Church Street
White Plains, New York 10601
lawoffice@meagherandmeagherpc.com
STEVEN C. SHAN, ESQ.
TADDEO & SHAHAN, LLP
Attorneys for Defendants
PINE PLAINS HOSE COMPANY, INC. and
PINE PLAINS FIRE DISTRICT NUMBER ONE s/h/a
PINE PLAINS FIRE DISTRICT and PINE PLAINS
RESCUE SQUAD
120 East Washington Street, Suite 400
Syracuse, New York 13202
sshahan@ts-law.com
LATHA RAGHAVAN, ESQ.
GOLDBERG & SEGALLA, LLP
Attorneys for Defendant
NORTHERN DUTCHESS PARAMEDIC, INC.
8 Southwoods Boulevard, Suite 300
Albany, New York 12211
lraghavan@goldbergsegalla.com
James D. Pagones, J.
Plaintiff moves for an order, pursuant to General Municipal Law §50-e(5), granting her leave to serve a late notice of claim. Additionally, plaintiff moves for an order amending the title of this action.
The following papers were read:
Notice of Motion-Affirmation-Exhibits 1-10 1-12
Affirmation-Exhibits A-C-Affidavit 13-17
Reply Affirmation 18
Upon the foregoing papers, the motion is decided as follows:
By way of background, plaintiff alleges that she sustained serious and permanent injuries resulting in paralysis. Plaintiff maintains that on March 19, 2016, she was caused to trip and fall down a flight of steps at "The Cabin" located at 2943 Church Street, Pine Plains, New York 12567. The plaintiff states that due in part to the medical care and treatment or lack thereof by the defendants, specifically the failure to use spinal precautions, spinal immobilization and/or follow protocol when transporting the plaintiff, she was rendered seriously injured. Counsel for the plaintiff alleges that the records necessary to commence this action and to serve a Notice of Claim were not received until January of 2017.
Pursuant to General Municipal Law §50-e(5), the court may, in its discretion, extend the time to serve a notice of claim (see Williams v. Nassau County Med., 6 NY3d 531 [2006]). The key factors in determining whether to allow service of a late notice of claim are whether (1) the movant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the municipality or municipal entity acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the municipality or municipal entity in its defense (see General Municipal Law §50-e[5]; Jordan v. City of New York, 41 AD3d 658 [2nd Dept 2007]; Matter of Lodati v. City of New York, 303 AD2d 406 [2nd Dept 2003]). The presence or absence of any one of these factors is not necessarily determinative (see Matter of Dell'Italia v. Long Is. R.R. Corp., 31 AD3d 758 [2nd Dept 2006]), and the absence of a reasonable excuse is not necessarily fatal (see Matter of March v. Town of Wappinger, 29 AD3d 998 [2nd Dept 2006]). However, whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim is seen as a factor which should be accorded great weight (see Matter of Brownstein v. [*2]Incorporated Vil. Of Hempstead, 52 AD3d 507 [2nd Dept 2008]).
Plaintiff indicates that while malpractice may have been suspected when the ambulance reports were received by her attorney's office on July 15, 2016, twenty-eight (28) days beyond the ninety (90) days requirement prescribed by General Municipal Law §50-e, the experts that her counsel's office consulted did not want to render any opinion until the medical records from the emergency room at Sharon Hospital were received. Accepting this, the Court finds that the movant has demonstrated a reasonable excuse for her failure to timely file a notice of claim (see Matter of Rojas v. New York City Health & Hosps. Corp., 127 AD3d 870 [2nd Dept 2015]).
To allow service of a late notice of claim, the claimant must show that the municipal entity acquired actual notice of the essential facts of the claim within ninety (90) days after the claim arose or a reasonable time thereafter. In support of her argument that the defendant Pine Plains acquired actual notice of the essential facts constituting her claim, plaintiff states that the defendant's report, prepared in the ordinary course of business, clearly shows that its own employees and/or agents failed to employ spinal immobilization of the plaintiff's neck and back when placing her on a stretcher at the scene of the accident. In order for a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the municipal corporation (see Devivo v. Town of Carmel, 68 AD3d 991 [2nd Dept 2009]). Here, the record evidence demonstrates that the Pine Plains defendant's possession of the ambulance reports sufficiently constituted actual notice of the pertinent facts. Plaintiff's submission of the affidavit of Paul Wefel, MS, NREMT-P (a certified paramedic) and the affirmation of Robert E. Todd, M.D., establish that the ambulance report, on its face, indicates that the Pine Plains defendant failed to diagnose spinal shock and failed to immobilize the plaintiff's spine; thus, worsening her injuries from the fall (see Khan v. New York City Health and Hospitals Corp., 135 AD3d 940 [2nd Dept 2016] leave to appeal denied by 28 NY3d 902; Bayo v. Burnside Mews Associates, 45 AD3d 495 [1st Dept 2007]; Hilton v. Town of Richland, 216 AD2d 921 [4th Dept 1995]).
The mere passage of time normally will not constitute substantial prejudice in the absence of some showing of actual injury (see Newcomb v. Middle County Cent. School Dist., 28 NY3d 455 [2016]). The inferences of memory failure associated with the passage of time in this action will not support a finding of substantial prejudice where there is no record evidence to support such a determination (id.).
Accordingly, plaintiff's motion is granted in its entirety. The caption of this action is amended as follows:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
X
LUANE BALLANTINE,
laintiff,
—against—
Index No. 50599/2017
PINE PLAINS HOSE COMPANY, INC.,
PINE PLAINS FIRE DISTRICT, PINE PLAINS
RESCUE SQUAD and NORTHERN DUTCHESS
PARAMEDIC, INC.,
Defendants.
X
The notice of claim, annexed as Exhibit "6", is hereby deemed timely served, nunc pro tunc. The parties are directed to appear for a Preliminary Conference on July 24, 2017 at 10:00 a.m. Adjournments are only granted with leave of the Court. The foregoing constitutes the decision and order of the Court. This decision and order has been filed electronically.
Dated: June 22, 2017
Poughkeepsie, New York
HON. JAMES D. PAGONES, A.J.S.C.
June 22, 2017
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