Opinion
1376/09.
Decided on September 30, 2009.
Petitioner was represented by Arnold E. DiJoseph, P.C. Respondents New York City and the New York City Fire Department were represented by Michael A. Cardozo, Corporation Counsel of the City of New York, Gayonne Robinson, of counsel.
Background
By Order to Show Cause petitioner moves this Court pursuant to GML § 50-e(5) to designate petitioner's proposed Notice of Claim timely filed nunc pro tunc, or, in the alternative, granting petitioner leave to file a Late Notice of Claim. This is a claim for personal injuries sustained by petitioner MELVIN ESTRELLA, on January 22, 2008, when he re-injured his back resulting from the allegedly negligent care and treatment rendered to petitioner by the Fire Department of the City of New York.
On November 2, 2007, petitioner, while on the job as Emergency Medical Technician for the New York City Fire Department, was lifting a patient that allegedly weighed approximately 300 pounds on to a stretcher. While lifting the patient, the patient moved and allegedly caused the petitioner to lose his balance and injure his lower back. As a result petitioner suffered severe back pain and missed one week of work.
Petitioner was referred for treatment to Dr. Goodman and Dr. Dutkowsky from the Fire Department of the City of New York. On November 19, 2007, petitioner was sent back to work by Dr. Goodman on light duty which consisted of office work. When petitioner saw Dr. Dutkowsky from the FDNY on January 2, 2008, the doctor ordered petitioner back to work on full duty, even though petitioner was allegedly still undergoing physical therapy, was not given any diagnostic tests at that time, and continued to have back problems. On January 22, 2008, petitioner allegedly had to lift another 250-300 pound patient onto a stretcher. Petitioner re-injured his back and underwent lumber surgery on February 21, 2008.
Petitioner's last day to serve the 90-day notice of claim was April 2, 2008. He retained counsel on December 30, 2008, and filed he instant Order to Show Cause on January 20, 2009 — approximately 9 months late.
The respondents oppose petitioner's petition on the grounds that petitioner's sole and exclusive remedy is under the Worker's Compensation Law, and because petitioner has failed to satisfied the requirements set forth in GML § 50-e(5) necessary for granting leave to file a Late Notice of Claim.
Discussion
GML § 50-e
First, the issue of whether petitioner has satisfied the requirements set forth in GML § 50-e(5) will be addressed.
In determining whether to grant leave to serve and file a late notice of claim, courts consider three factors:
(1) has the petitioner demonstrated a reasonable excuse for the delay;
(2) has the public corporation acquired actual knowledge of the essential facts of the claim within 90 days after the claim arose, or a reasonable time thereafter, and
(3) did the delay in serving the notice of claim substantially prejudice the public corporation in maintaining its defense on the merits.
Petitioner's excuse is that he was under the impression that he could not pursue a claim against the City of New York and the FDNY for medical malpractice/negligence for an act of a Fire Department doctor that consisted of ordering him to return to full duty prematurely. The Court does not find this excuse reasonable. In deciding an application for leave to serve a late notice of claim, however, the presence or absence of any one of the three pertinent factors is not necessarily dispositive. All relevant factors must be weighed. Savelli v. City of New York, 104 AD2d 943, 480 NYS2d 561 (2d Dep't 1984).
Proceeding to the second factor, did respondent City of New York receive actual notice of the essential facts of the claim within 90 days after the claim arose, or a reasonable time thereafter, the Court finds that respondents did receive actual notice. Respondents City of New York, and FDNY received notice that petitioner was originally injured on November 2, 2007, as petitioner was in the employ of respondent FDNY on the date of the incident, and was seen by both Drs. Goodman and Dutkowsky of the FDNY during the course of his treatment. Petitioner also applied for and received Workers' Compensation Benefits for this injury. Dr. Goodman placed petitioner on light duty following an examination on November 19, 2007, and was restored to full duty by Dr. Dutkowsky on January 2, 2008, even though petitioner was still undergoing physical therapy. Petitioner re-injured his back on January 22, 2008, when attempting to lift a 240-300 pound man onto a stretcher at the direction of his employer.
Petitioner was injured both times while on duty as an emergency medical technician for the NYFD. He was referred to the respondent NYFD's physicians in order to determine and document his injuries for his Workers Compensation Claim. Petitioner continued to treat with NYFD physicians as a condition for receiving Workers Compensation, and he treated with his own physicians as well. As petitioner was "on-the-job" during his last injury and again applied for Workers Compensation Benefits, the Court finds that respondents had notice of the essential facts of both injuries constituting petitioner's claim. Vasquez v. City of Newburgh , 35 AD3d 621 , 826 NYS2d 648 [2nd Dep't. 2006]. As the Court of Appeals has stated, "[T]he only legitimate purpose served by the notice is prompt investigation and preservation of . . . the facts and circumstances out of which claims arise". See also , Beary v. City of Rye, 44 NY2d 398, 412, 406 NYS2d 9, 377 NE2d 453. Here, respondents had actual notice of all of the essential facts constituting petitioner's claim at the times of his injuries.
Finally, does the delay in filing a Notice of Claim substantially prejudice the respondents in maintaining its defense on the merits? The Court finds the answer to this question is "no" for the reasons listed above. The respondents knew of the injuries to petitioner at the times those injuries occurred. Respondents have access to all of petitioner's medical, work, and personnel files. Petitioner has suffered serious injuries which may leave him permanently disabled, and respondents had and continue to have access to the necessary records to prepare their defense. Caselli v. City of New York, 105 AD2d 251 (2nd Dep't. 1984), cited by respondents as supporting their position that respondents had no actual notice, does not apply in the instant matter. In Caselli, no specific facts were alleged by the petitioner as to where the accident at issue actually occurred, and failed to provide other essential facts. Here, respondents have been involved from the date of Petitioner's first injury with petitioner's treatment and Workers Compensation Claim. Respondents have failed to demonstrate any prejudice they will suffer as a result of petitioner's delay.
GML § 50-e grants the courts of this State the discretion to extend the time in which a claimant must file a "late" notice of claim, so long as the petition to the Court is within the time limited for the actual commencement of an action against the municipality, namely, one year and ninety days. See, Matter of Daniel J. V. New York City Health and Hospitals Corp., 77 NY2d 630, 569 NYS2d 396 (1991). Petitioner's claim is within the statute of limitations for this action.
Is a claim pursuant to Workers Compensation Law Petitioner's Sole Remedy ?
Respondents contend that Workers Compensation Law is the exclusive remedy for petitioner and therefore, even if his petition to file a late notice of claim is granted, his claim is merit less. This Court, however, recently ruled in Mark Weiner v. The City of New York, Index No. 822/08 that plaintiff Weiner who was an employee (but not a firefighter) of the New York City Fire Department was among the class of persons covered by General Municipal Law § 205-a and could therefore maintain a complaint against the City o f New York.
The Court based its ruling in Weiner on Lo Tempio v. City of Buffalo , 6 AD3d 1197 (4th Dept. 2004) which held that a civilian employee of the Buffalo Fire Department was among the class of persons covered by GML § 205-a. The language relied upon in 205-a by the Fourth Department is as follows: plaintiff has a right of recovery pursuant to 205-a,
"which by its terms establishes a right of recovery on the part of any officer, member agent or employee of any fire department injured . . . while in the discharge or performance at any or place of any duty imposted by the fire commissioner, fire chief or other superior officer of the fire department.'"
Although Lo Tempio is a Fourth Department case, the Second Department has held that the doctrine of stare decisis requires trial courts in the Second Department to follow the precedents set by the Appellate Division of another department until the Court of Appeals or this department pronounce a contrary rule. See, 686 Mountain View Coach Lines, Inc., v. Storms, 102 AD2d 663, 664 (2nd Dept. 1984).
Further, Plaintiff's application for and acceptance of Workers' Compensation Benefits based on his injuries does not preclude plaintiff's action against the employer. Gonzalez v. Locavello, 93 NY2d 539, 546, 549-550 (1999). Workers Compensation Benefits are recoverable from any award plaintiff may received from said action against the employer.
Conclusion`
Accordingly, for all of the foregoing reasons, the Court orders that the Notice of Claim received by respondent on January 16, 2009, be deemed timely served nunc pro tunc.
This constitutes the Decision and Order of the Court.