Bonaguro v. City of New York

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim upon the City of New York, or, in the alternative, in effect, for leave to conduct preaction disclosure, the appeal is from an order of the Supreme Court, Kings County (Ruchelsman, J.), entered October 30, 2013, which granted that branch of the petition which was for leave to serve a late notice of claim.

On February 14, 2012, the petitioner allegedly fell and sustained injuries while performing cleaning work as a laborer employed by a general contractor at a wastewater treatment plant owned and operated by the City of New York, the New York City Department of Environmental Protection, and the New York City Department of Sanitation (hereinafter collectively the appellants). The petitioner alleged that the accident was witnessed by the petitioner’s coworkers and an employee of the appellants. On the date of the accident, the petitioner was treated at the construction site by an on-site medical provider. Within two weeks of the accident, the petitioner filed a claim with his employer’s workers’ compensation carrier. Medical records were submitted to the carrier within the 90-day period following the accident. Thereafter, on August 17, 2012, or approximately six months after the alleged accident, the petitioner commenced this proceeding for leave to serve a late notice of claim upon the City. In the alternative, the petitioner, in effect, sought leave to conduct pre-action disclosure in connection with issues relating to whether an employee, officer, or agent of the City obtained actual knowledge of the essential facts constituting the claim within 90 days after it accrued or a reasonable time thereafter, and whether the knowledge of that employee, officer, or agent could be imputed to the City. The Supreme Court granted that branch of the petition which was for leave to serve the late notice of claim upon the City.

The Supreme Court improvidently exercised its discretion in granting that branch of the petition. In determining whether to grant a petition or motion for leave to serve a late notice of claim, a court must consider, inter alia, whether the petitioner demonstrated a reasonable excuse for the delay, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after it arose or within a reasonable time thereafter, and whether the delay would substantially prejudice the public corporation in maintaining its defense on the merits (see General Municipal Law § 50-e [5]; Matter of Snyder v County of Suffolk, 116 AD3d 1052 [2014]; Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d 790 [2014]; Matter of Destine v City of New York, 111 AD3d 629 [2013]; Platt v New York City Health & Hosps. Corp., 105 AD3d 1026 , 1027 [2013]).

In light of its determination, the Supreme Court did not address that branch of the petition which, in effect, sought leave to conduct pre-action disclosure in connection with the issues relating to whether the City obtained actual knowledge of the essential facts constituting the claim, and, if so, the timing thereof. Thus, that branch of the petition remains pending and undecided (see Matter of Interboro Ins. Co. v Maragh, 51 AD3d 1024 , 1026 [2008]; Matter of Valley Forge Ins. Co. v Schofield, 283 AD2d 507 , 508 [2001]; Katz v Katz, 68 AD2d 536 , 542-543 [1979]), and the matter must be remitted to the Supreme Court, Kings County, for a determination of that branch of the petition which was for leave to conduct pre-action disclosure. Since, under the circumstances of this case, a determination of that branch of the petition by the Supreme Court may have an effect on whether the petitioner can establish that the City obtained actual knowledge of the essential facts constituting the claim within 90 days of its accrual, or a reasonable time thereafter,

Rivera, J.E, Hall, Austin and Cohen, JJ., concur.