Matter of Grajko v. City of New York ( 2017 )

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered September 15, 2016, which, among other things, granted petitioner’s motion for leave to serve a late notice of claim upon respondents, reversed, on the law and the facts, without costs, the motion denied, and the petition dismissed. The Clerk is directed to enter judgment accordingly.

The underlying facts of the accident are set forth by the dissent. The motion court improvidently exercised its discretion in granting the motion. Petitioner failed to establish any of the relevant statutory factors that would warrant leave to serve a late notice of claim (General Municipal Law § 50-e [5]; Matter of Kelley v New York City Health & Hosps. Corp., 76 AD3d 824, 825 [1st Dept 2010]). Petitioner’s alleged failure to realize the severity of his injuries within 90 days after his accident did not constitute a reasonable excuse for his delay in serving a notice of claim, especially since petitioner filed a workers’ compensation claim just weeks after the accident (see e.g. Matter of Casale v City of New York, 95 AD3d 744, 744-745 [1st Dept 2012]). Nor did petitioner show that respondents acquired actual knowledge of the essential facts constituting the claim within the statutory period, or a reasonable time thereafter (see General Municipal Law § 50-e [5]). There is no evidence that respondents received petitioner’s workers’ compensation claim form, which, in any event, makes no mention of the allegations against respondents (see Colarossi v City of New York, 118 AD3d 612, 612 [1st Dept 2014]). Absent any knowledge of even a potential Labor Law claim, respondents certainly had no basis to conduct their own investigations (see Matter of Thompson v City of New York, 95 AD3d 1024 [2d Dept 2012]).

Petitioner also failed to establish a lack of prejudice to respondents. Petitioner’s reliance on Newcomb (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455 [2016]) is misplaced. In Newcomb, a timely notice of claim had already been filed against the other municipal defendants and the only question was whether to permit the filing of a late notice of claim against the school district (id. at 461, 462). Notably, the petitioner in Newcomb pointed to several specific facts that negated any claim of prejudice on the part of the school district besides the passage of time, and thus his burden to show lack of prejudice in that case was easily met, shifting the burden to the school district (id. at 466-467). Our case has a completely different posture. As stated, there is no evidence respondents were aware of an accident even occurring. Petitioner here, unlike the petitioner in Newcomb, does no more than refer to numerous construction records that purportedly could be examined, yet provides no names of actual witnesses nor any reference to specific information in those records.

Even assuming petitioner here met his initial burden, the prejudice to respondents, shown herein, was clear and explicit.

Concur—Friedman, J.P., Sweeny and Andrias, JJ.