In the Matter of Raymond Newcomb et al., Appellants,v.Middle Country Central School District, Respondent.

Brief

N.Y.November 15, 2016

APL-2015-00246 Suffolk County Clerk’s Index No. 31807/13 Appellate Division, Second Department Docket No. 2014-05995 Court of Appeals STATE OF NEW YORK In re the Matter of the Claim of RAYMOND NEWCOMB, Individually and as Father and Natural Guardian of AUSTIN NEWCOMB, Petitioners-Appellants, against MIDDLE COUNTRY CENTRAL SCHOOL DISTRICT, Respondent-Respondent. >> >> BRIEF FOR PETITIONERS-APPELLANTS LAW OFFICES OF PAUL A. MONTUORI, P.C. Attorneys for Petitioners-Appellants 246 Mineola Boulevard, Suite 109 Mineola, New York 11501 516-338-4714 Date Completed: December 14, 2015 To Be Argued By: Paul A. Montuori Time Requested: 30 Minutes i TABLE OF CONTENTS TABLE OF CONTENTS…………………………………………………………...i TABLE OF AUTHORITIES………………………………………………………iv QUESTIONS PRESENTED………………………………………………………1 JURISDICTIONAL STATEMENT………………………………………………..3 PRELIMINARY STATEMENT…………………………………………………...3 STATEMENT OF FACTS………………………………………………………..11 Background of the Accident and the Investigation………………………………11 PROCEDURAL BACKGROUND………………………………………………..15 The Petitioners-Appellants’ Proposed Notice of Claim…………………………15 Special Term’s Decision………………………………………………………...16 The Appellate Division, Second Department’s Determination………………….17 ARGUMENT……………………………………………………………………...19 POINT I THE NECESSARY ACTUAL KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES OF THE CLAIM IS ESTABLISHED AS A MATTER OF LAW BECAUSE RESPONDENT CREATED THE CONDITION AND SUBSEQUENTLY REMOVED SUCH CONDITION PRIOR TO 90 DAYS FOLLOWING THE ACCIDENT…………………………………………………19 A. Because Respondent Negligently Placed the Sign at the Intersection, it Possessed Actual Knowledge of the Facts and Circumstances of Appellants’ Claim……………………………..21 B. Respondent’s Removal of the Sign Prior to 90 days Following the Accident Provides an Independent Ground for Finding Actual Knowledge…………………………………….33 ii C. Respondent’s Receipt of the Report of the Accident Provides Further Actual Knowledge Because Respondent was Made Aware Within 90 Days of an Accident Taking Place at a Location Where it Knew its Sign was Placed and Removed…………………………………………………………………....37 POINT II THE SECOND DEPARTMENT ERRED IN FINDING PREJUDICE BECAUSE THE INFANT PETITIONER PLACED UNDISPUTED EVIDENCE INTO THE RECORD DEMONSTRATING HOW RESPONDENT IS ABLE TO CONDUCT A FULL INVESTIGATION OF THE CLAIM AND DEFEND ON THE MERITS WHILE RESPONDENT OFFERED NO ADMISSIBLE EVIDENCE SHOWING PREJUDICE………………………………………………………………………41 A. The Police Pictures of the Accident Scene Constitute Clear Evidence which as a Matter of Law, Removes any Prejudice……………………………………………………………………48 B. The Second Department’s Finding of Prejudice is in Error Because Prejudice under GML § 50-e[5] Cannot be Shown by Inadmissible Evidence and Speculation by the Court of Presumed Facts Dehors the Record……………………………53 POINT III PETITIONERS-APPELLANTS’ “REASONABLE EXCUSE” FOR THE SHORT DELAY IN FILING BASED UPON INCAPACITATION DUE TO THE ACCIDENT AND THE UNAVAILABILITY OF CRUCIAL EVIDENCE BECAUSE OF A CRIMINAL INVESTIGATION, WARRANTS THE PETITION BE GRANTED……………………………………………………………………59 A. The 90-day Time Limitation Should not Have Begun to Run Against the Incapacitated Infant During the Time When he Could not Have Known of Respondent’s Negligence…………………………………………………………….........65 iii POINT IV CONSTRUING GML § 50-e TO PROVIDE A PUBLIC CORPORATION RESPONDENT WITH A STATUTORY WINDFALL RESULTING FROM AN INCAPACITATION ALLEGEDLY CAUSED BY THE RESPONDENT, A CRIME BEING COMMITTED, AND ITS OWN REMEDIATION OF NEGLIGENCE PRIOR TO 90 DAYS FOLLOWING AN ACCIDENT, VIOLATES PUBLIC POLICY………………………………………………………………...68 CONCLUSION…………………………………………………………………...70 iv TABLE OF AUTHORITIES Cases Abano v. Suffolk County Cmty. Coll., 66 A.D.3d 719 [2d Dept. 2009]……………………………………………32 Amabile v. City of Buff., 93 N.Y.2d 471 [1999]…………………………………………………..32-33 Andrew T.B. v. Brewster Cent. Sch. Dist., 18 A.D.3d 745 [2d Dept. 2005]………………………………………...55-56 Ansong v. City of New York, 308 A.D.2d 333 [1st Dept. 2003].………………………………………23, 42 Ayala v. City of New York, 189 A.D.2d 632 [1st Dept. 1993].…………………………………………..23 Bakioglu v. Tornabene, 117 A.D.3d 658 [2d Dept. 2014]…………………………………………...19 Barnes v. New York City Hous. Auth., 262 A.D.2d 46 [1st Dept. 1999].……………………………………………51 Beary v. City of Rye, 44 N.Y.2d 398 [1978]……………………………………………………..4-5 Beatty v. County of Saratoga, 74 A.D.2d 662 [3d Dept. 1980]…………………………………………….48 Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662 [1976]……………………………………………………...34 Blake v. City of Alb., 48 N.Y.2d 875 [1979]……………………………………………………...33 Bovich v. E. Meadow Pub. Lib., 16 A.D.3d 11 [2d Dept. 2005]……………………………………………..39 Cacucciolo v. City of New York, 127 Misc.2d 513 [1985]………………………………………………........67 v Camacho v. City of New York, 187 A.D.2d 262 [1st Dept. 1992].……………………………………………6 Camarella v. E. Irondequoit Central Sch. Bd., 34 N.Y.2d 139 [1974]…………………………………………………..5-6, 8 Caridi v. New York Convention Center Operating Corp., 47 A.D.3d 526 [1st Dept. 2008]…………………………………………….51 Cassidy v. County of Nassau, 84 A.D.2d 742 [2d Dept. 1981]…………………………………….55, 66-67 Cicio v. City of New York, 98 A.D.2d 38 [2d Dept. 1983]……………………………………………...40 City of New York v. State of New York, 27 Misc.3d 1207(A) [N.Y. Ct. of Cl. 2009]………………………………..18 Clark v. Roswell Park Cancer Inst., Corp., 92 A.D.3d 1273 [4th Dept. 2012].…………………………………………..24 Claud v. West Babylon Union Free School District, 110 A.D.3d 663 [2d Dept. 2013]….………………………………………...20 Damico v. Onondaga County Water Auth., 36 Misc.2d 158 [1962])…………………………………………………….67 Distel v. County of Ulster, 107 A.D.2d 994 [3d Dept. 1985]…………………………………………...66 Erichson v. City of Poughkeepsie Pol. Dept., 66 A.D.3d 820 [2d Dept. 2009]………………………………………...21-22 Gibbs v. City of New York, 22 A.D.3d 717 [2d Dept. 2005]………………………………………..passim Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555 [1993]…………………………………………………..29-30 Griffen v. Manice, 166 N.Y 188 [1901]………………………………………………………..25 vi Grubaugh v.City of St. Johns, 384 Mich. 165 [1970]………………………………………………….passim Hamm v. Mem. Hosp. of Greene County, 99 A.D.2d 638 [3d Dept. 1984]…………………………………………….24 Heiman v. City of New York, 85 A.D.2d 25 [1st Dept. 1982]……………………………………………...42 In re Hubbard, 71 A.D.3d 1313 [3d Dept. 2010]……………………………………….51, 61 In re Lopez, 103 A.D.3d 567 [1st Dept. 2013].…………………………………………..57 In re Mercado, 100 A.D.3d 445[1st Dept. 2012]……………………………………………47 In re Thomas, 118 A.D.3d 537 [1st Dept. 2014].…………………………………………..22 Jordan v. City of New York, 41 A.D.3d 658 [2d Dept. 2007]…………………………………………….58 Justiniano v. N.Y. City Hous. Auth. Police, 191 A.D.2d 252 [1st Dept. 1993].…………………………………………..23 Kavanaugh v. Mem. Hosp. & Nursing Home, 126 A.D.2d 930 [3d Dept. 1987]…………………………………………...23 Kellman v. Hauppauge Union Free Sch. Dist., 120 A.D.3d 634 [2d Dept. 2014]…………………………………………...57 Kiernan v. Thompson, 73 N.Y.2d 840 [1988]……………………………………………………...32 Leeds v. Port Wash. Union Free Sch. Dist., 55 A.D.3d 734 [2d Dept. 2008]………………………………………...20, 57 Lopez v. County of Nassau, 120 A.D.3d 688 [2d Dept. 2014]…………………………………………...62 vii Lozada v. City of New York, 189 A.D.2d 726 [1st Dept. 1993].…………………………………………..51 Martinez v. City of New York, 2008 N.Y. Slip Op. 32496(U) [Sup. Ct. N.Y. Cty. September 11, 2008]………………………………....6-7 Matter of Abbate v. City of New York, 49 Misc. 3d 1207(A) [Sup. Ct. Kings Cty. October 5, 2015]…………………………………49-50 Matter of Alaimo v. Nassau Cty. Dept. of Hlt., 151 A.D.2d 570 [2d Dept. 1989]…………………………………………..18 Matter of Apgar v. Waverly Cent. School Dist., 36 A.D.3d 1113 [3d Dept. 2007]……………………………………….56-57 Matter of Battle v. City of New York, 261 A.D.2d 614 [2d Dept. 1999]………………………………………passim Matter of Bird v. Port Byron Cent. School Dist., 231 A.D.2d 916 [4th Dept. 1996]…………………………………………...39 Matter of Bonaguro v. City of New York, 2013 N.Y. Slip Op. 33826(U) [Sup. Ct. Kings Cty. October 1, 2013]……………………………………..54 Matter of DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653 [2006]………………………………………………………...9 Matter of Day v. Greenburgh Eleven Union Free School Dist., 88 A.D.3d 877 [2d Dept. 2011]…………………………………………….18 Matter of DeMolfetto v. City of New York, 216 A.D.2d 295 [2d Dept.1995]……………………………………….passim Matter of Devivo v. Town of Carmel, 68 A.D.3d 991 [2d Dept. 2009]…………………………………………….27 Matter of Driskell v. City of New York, 31 A.D.2d 541 [2d Dept. 1968]………………………………………...45, 63 viii Matter of Fennell v. City School District of Long Beach, 118 A.D.3d 783 [2d Dept. 2014]…………………………………………...39 Matter of Gillum v. County of Nassau, 284 A.D.2d 533 [2d Dept. 2001]…………………………………………...62 Matter of Haeg v. County of Suffolk, 30 A.D.3d 519 [2d Dept. 2006]………………………………………..passim Matter of Halperin v. City of New York, 127 A.D.2d 461 [1st Dept. 1987]…………………………………………...18 Matter of Hayes v. Del.-Chenango-Madison-Otsego Bd. of Coop. Educ. Servs., 79 A.D.3d 1405 [3d Dept. 2010]………………………………….........45-47 Matter of Hurd v. County of Allegany, 39 A.D.2d 499 [4th Dept. 1972].……………………………………………61 Matter of Kurz v. New York City Health and Hosps. Corp., 174 A.D.2d 671 [2d Dept. 1991]…………………………………………...56 Matter of LaMay v. County of Oswego, 49 A.D.3d 1351 [4th Dept. 2008].…………………………………………..24 Matter of Lucas v. City of New York, 91 A.D.2d 637 [2d Dept. 1982]…………………………………………….40 Matter of Mitchell v. City of New York, 77 A.D.3d 754 [2d Dept. 2010]………………………………………...27-28 Matter of Mounsey v. City of N.Y., 68 A.D.3d 998 [2d Dept. 2009]…………………………………………….51 Matter of Regan v. City of New York, 131 A.D.3d 1064 [2d Dept. 2015]………………………………………….61 Matter of Reisse v. County of Nassau, 141 A.D.2d 649 [2d Dept. 1988]…………………………………………...43 Matter of Rosa Rivera v. City of New York, 127 A.D.3d 445 [1st Dept. 2015]……………………………………..4, 46-47 ix Matter of Sabot v. Lavine, 42 N.Y.2d 1068 [1977]……………………………………………………...9 Matter of Schiffman v. City of New York, 19 A.D.3d 206 [1st Dept. 2005].……………………………………………..6 Matter of Schwindt v. County of Essex, 60 A.D.3d 1248 [3d Dept. 2009]…………………………………………...57 Matter of Somma v. City of New York, 81 A.D.2d 889 [2d Dept. 1981]…………………………………………….40 Matter of Underwood v. N.Y. City Hous. Auth., 177 A.D.2d 698 [2d Dept. 1991]…………………………………………...43 Matter of Urban v. Waterford-Halfmoon Union Free School Dist., 105 A.D.2d 1022 [3d Dept. 1984]………………………………………….39 Matter of Vasquez v. City of Newburgh, 35 A.D.3d 621 [2d Dept. 2006]…………………………………………….19 Matter of Welch v. Board of Educ. of Saratoga Cent. School Dist., 287 A.D.2d 761 [3d Dept. 2001]……………………………………….57-58 Matter of Wright v. City of New York, 66 A.D.3d 1037 [2d Dept. 2009]…………………………………………...27 Matter of Zimmet v. Huntington Union Free School Dist. [District No. 3], 187 A.D.2d 436 [2d Dept. 1992]…………………………………………...39 McCarthy v. Volkswagen of Am., Inc., 55 N.Y.2d 543 [1982]……………………………………………………...67 Medley v. Cichon, 305 A.D.2d 643 [2d Dept. 2003]…………………………………………..56 Memorial Hosp. v. McGreevey, 152 Misc.2d 127 [1991]……………………………………………………66 Methal v. City of New York, 116 A.D.3d 743 [2d Dept. 2014].………………………………………….32 x Mirand v. City of New York, 84 N.Y.2d 44 [1994]……………………………………………………….30 Monge v. City of New York, 95 A.D.2d 848 [2d Dept. 1983]……………………………………………48 Noseworthy v. New York, 298 N.Y. 76 [1948]…………………………………………………24-25, 55 Nunez v. City of New York, 307 A.D.2d 218 [1st Dept. 2003].……………………………………….22-23 Oboler v. City of New York, 8 N.Y.3d 888 [2007]……………………………………………………….32 People v. Cook, 128 A.D.3d 928 [2d Dept. 2015]………………………………………...9-10 Phillipe v. City of New York, 8 Misc. 3d1016(A) [Sup. Ct. N.Y. Cty. April 8, 2005]…………………….54 Picciano v. Nassau County. Civ. Serv. Commn., 290 A.D.2d 164 [2d Dept. 2001]…………………………………………...22 Pierson v. City of New York, 56 N.Y.2d 950 [1982]……………………………………………………..5-6 Prude v. County of Erie, 47 A.D.2d 111 [4th Dept. 1975].……………………………………45, 59, 61 Rechenberger v. Nassau County Med. Center, 112 A.D.2d 150 [2d Dept. 1985]……………………………………….24, 49 Rivera v. City of New York, 169 A.D.2d 387 [1st Dept. 1991]…………………………………..35, 41, 51 Robles v. New York City Housing Authority, 2014 N.Y. Slip Op. 31088(U) [Sup. Ct. Bronx Cty. March 13, 2014]……………………………………..55 Rojas v. HHC, 127 A.D.3d 870 [2d Dept. 2015]…………………………………….4, 58-59 xi Rosario v. New York City Health and Hospitals Corporation, 119 A.D.3d 490 [1st Dept. 2014]…………………………………………...48 Rosario-Bencosme v. City of New York, 2013 N.Y. Slip. Op. 32821(U) [Sup. Ct. N.Y. Cty. November 1, 2013]……..……………………………..52 Ruffino v. City of New York, 57 A.D.3d 550 [2d Dept. 2008]…………………………………………….51 Samiento v. World Yacht Inc., 10 N.Y.3d 70 [2008]………………………………………………………...9 Sandak v. Tuxedo Union Sch. Dist., No. 3, 308 N.Y. 226 [1954]………………………………………………………...5 Sosa v. City of New York, 124 A.D.3d 515 [1st Dept. 2015]……………………………………40, 50-51 Savelli v. New York, 122 A.D.2d 55 [2d Dept. 1986]…………………………………………….63 Sengstack v. Sengstack, 4 N.Y.2d 502 [1958]……………………………………………………….59 Sexstone v. City of Rochester, 32 A.D.2d 737 [4th Dept. 1969]……………………………………………66 St. Paul Guardian Ins. Corp. v. Pocatello Fire Dist., 90 A.D.3d 761 [2d. Dept. 2011]…………………………………………...19 Stuto v. City of New York, 192 Misc. 935 [1948]…………………………………………………...62-63 Teresta v. City of New York, 304 N.Y. 440 [1952]………………………………………………………...5 Varkonyi v. Varig, 22 N.Y.2d 333 [1968]……………………………………………………...10 Voss v. Netherlands Ins. Co., 22 N.Y.3d 728 [2014]……………………………………………………...29 xii Whitehead v. Centerville Fire Dist., 90 A.D.2d 655 [3d Dept. 1982]…………………………………………….23 Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531 [2006]…………………………………………………..passim Wurster v. Armfield, 175 N.Y. 256 [1903]……………………………………………………….59 Ziecker v. Orchard Park, 70 A.D.2d 422 [4th Dept. 1979], aff’d 51 N.Y.2d 957 [1980].…………………………………………………6 Statutes and Rules CPLR 208…………………………………………………………………………67 CPLR 5602 [a][1]…………………………………………………………………..3 CPLR Art. 12……………………………………………………………………...60 Education Law § 3813[2-a]…………………………………………………….5, 66 General Municipal Law § 50-e[5]……………………………………………passim General Municipal Law § 50-i……………………………………………………66 N.Y. Estates, Powers & Trusts Law Arts. 7, 11…………………………………..60 N.Y. Mental Hygiene Law Art. 81………………………………………………..60 Uniform Rules for the New York State Trial Courts § 202.67…………………....60 Other Authorities 21st Annual Report of N.Y. Judicial Conference, 1976…………………….……....5 1944 Report of the Judicial Council, recommending adoption of Section 50-e of the General Municipal Law [Tenth Annual Report of N.Y. Judicial Council 1944]………………………………………………………………………………..5 American Jurisprudence, Volume 38, Section 703……………………………….64 xiii McKinney’s Cons Laws of NY, Book 1……….………………………………….10 Town of Brookhaven Code §§ 57A-1[c], 9[b], 12[c] [Effective June 4, 1997]……………………………………………………….21, 26 RELATED LITIGATION Petitioner-Appellant Raymond Newcomb (“Raymond”), on behalf of himself and his incapacitated son Austin Newcomb (“Austin” and collectively the “Newcombs” or “Appellants”), has filed an action in the New York State Supreme Court relating to Austin’s accident entitled Newcomb v. Suffolk County, et. al. (Index No. 006985/14). Respondnet-Respondent Middle Country Central School District (“Middle Country” or “Respondent”) is a defendant in this action. The action has been stayed pending this appeal. Raymond has also filed a claim, individually and for Austin, against the State of New York in the New York Court of Claims (Claim No. 124102). This action is pending. Because Austin has turned eighteen and remains incapacitated as a result of the accident, a guardianship petition has been filed in the Suffolk County Surrogate’s Court. The petition seeks to have Raymond and his wife Jenny Newcomb, Austin’s mother, appointed as Austin’s guardian. This matter remains pending. 1 QUESTIONS PRESENTED 1. Does a public corporation’s creation, and subsequent removal, of a transitory negligent condition satisfy the “actual knowledge” standard of GML § 50-e[5] as a matter of law? The lower courts erred as a matter of law by construing GML § 50-e[5] in a manner that excludes the public corporation’s own actions as a source of providing actual knowledge of a claim within 90 days following an accident. 2. Can a finding of substantial prejudice under GML § 50-e[5] be substantiated where the public corporation offered only a general statement of prejudice made in an affirmation of counsel lacking personal knowledge of the underlying facts, and such finding was based on speculation as to matters dehors the record? The lower courts erred as a matter of law in finding that the public corporation was substantially prejudiced despite the fact that the public corporation offered no admissible evidence demonstrating prejudice. 3. Was the incapacitated minor petitioner’s proffer of police pictures taken of the accident scene and depicting the underlying facts and circumstances of the claim sufficient to satisfy the burden of demonstrating a lack of substantial prejudice? 2 The lower courts erred as a matter of law in failing to consider, inter alia, that the police investigation photos enable the public corporation to conduct a complete investigation of the claim and offer a defense. 4. Does the finding of a “reasonable excuse” for the late notice of claim, resulting from the incapacitation of the minor petitioner from the public corporation’s alleged negligence, the public corporation’s removal of the transitory negligent condition prior to 90 days, and the unavailability of the sole evidence revealing the public corporation’s negligence because of an ongoing criminal investigation, warrant the grant of the petition? The lower courts erred as a matter of law by failing to take into account the total “mix” of circumstances that made it impossible for the incapacitated infant to timely identify the public corporation and timely file a notice of claim. 5. Does construing GML § 50-e[5] in a manner that awards a public corporation a statutory windfall because of the severe incapacitation it is alleged to have caused, the public corporation’s removal of the transitory negligent condition prior to 90 days, and a criminal investigation making accident scene materials unavailable, violate public policy? The lower courts’ interpretation of GML § 50-e[5] violated public policy by providing the public corporation with a statutory benefit resulting from negligence and criminal conduct. 3 JURISDICTIONAL STATEMENT This Court has jurisdiction pursuant to CPLR 5602 [a][1] to entertain the Newcombs’ appeal because the Newcombs are appealing from a final order of the Appellate Division, Second Department dated May 6, 2015. This Court granted the Newcombs’ Motion for Leave to Appeal on September 17, 2015. The questions presented in this appeal have been preserved for this Court’s review in the petition brought in the Supreme Court, Suffolk County, together with the supporting and opposing papers (R. at 10-79)1, the order of the Supreme Court Suffolk County, Special Term (the Honorable Andrew J. Tarantino, Jr.) (R. at 4-8), the appellate briefs, and the Second Department’s order (R. at 84-85). PRELIMINARY STATEMENT The Newcombs respectfully submit that the Appellate Division, Second Department’s affirmance of Special Term’s order represents a sharp departure from the intended legislative purpose of General Municipal Law (“GML”) § 50-e and well-settled case law. The Second Department has deviated from the well- established jurisprudence of both this Court and the other Judicial Departments setting forth the proper statutory interpretation. (See, e.g., Williams v. Nassau 1 References to the Record are cited herein as (“R. at ___”). References to Appellants’ opening brief in the Appellate Division are cited herein as (“App. 2d Br. at __”) while Respondent’s brief on appeal is cited as (“Res. 2d Br. at ___”) and Appellants’ Second Department reply brief as (“Reply 2d Br. at ___”). 4 County Med. Ctr., 6 N.Y.3d 531, 538-539 [2006] [all factors surrounding a petition must go into the “mix” of circumstances, and GML § 50-e[5] requires a court to take into consideration “all relevant facts and circumstances”]; Matter of Rosa Rivera v. City of New York, 127 A.D.3d 445, 446 [1st Dept. 2015] [late notice allowed where petitioner suffered incapacitation due to ongoing brain injury resulting from accident]). The Second Department has also departed from its own precedent dictating the permissible circumstances for filing a late notice of claim. (See, e.g., Rojas v. HHC, 127 A.D.3d 870, 872-873 [2d Dept. 2015] [late notice allowed because petitioner had a “reasonable excuse” for the late filing and public corporation did not specifically claim that any of its witnesses had become unavailable or had faded memories]). In so doing it has ignored numerous factors demonstrating why the incapacitated minor Austin should have his petition granted. The Newcombs respectfully submit that the lower courts’ failure to properly consider each of the required statutory factors has resulted in the most inequitable application of GML § 50-e since the statute was amended to its present form. The “tragic,” (R. at 4), circumstances presented here represent the classic fact pattern the legislature envisioned to be deserving of relief under GML § 50-e[5]. As this Court has stated, “‘[t]he only legitimate purpose served by the notice’ is prompt investigation and preservation of evidence of the facts and circumstances out of which claims arise.” (Beary v. City of Rye, 44 N.Y.2d 398, 412 [1978], 5 quoting 21st Annual Report of N.Y. Judicial Conference, 1976 (the “1976 Report”), p 302 [citations omitted]; see also Sandak v. Tuxedo Union School Dist. No. 3, 308 N.Y. 226, 232 [1954] [“‘[t]he requirement of notice is one of the safeguards devised by the law to protect municipalities against fraudulent and stale claims for injuries to person and property…’” and not a “‘trap for the unwary and the ignorant’”], quoting 1944 Report of the Judicial Council, recommending adoption of Section 50- e of the General Municipal Law, [Tenth Annual Report of N.Y. Judicial Council, 1944, p. 265]; Teresta v. City of New York, 304 N.Y. 440, 443 [1952] [“The prime, if not the sole, objective of the notice requirements of such a statute [GML § 50-e or Education Law § 3813 [2-a]] is to assure the [public corporation] an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available.”]) Prior to the statute’s current version, this Court rebuked the harsh, formulaic application of GML § 50-e that served to unjustly bar legitimate claims. Commenting on the statute’s prior form, this Court observed that “[t]he need for legislative reconsideration of the harsher aspects of section 50-e is apparent...in order that a more equitable balance may be achieved between a public corporation’s reasonable need for prompt notification of claims against it and an injured party’s interest in just compensation.” (Camarella v. E. Irondequoit Central Sch. Bd., 34 N.Y.2d 139, 142-143 [1974] [internal citation omitted]; see also Pierson v. City of 6 New York, 56 N.Y.2d 950, 955 [1982] [observing that “it was the intention of the Legislature, manifested in the amended statute, to relax the objectionably restrictive features of the old statute”]). In 1976 the New York State Legislature responded to the Camarella Court’s call by amending the notice of claim statute. These amendments attempted to lessen the harsh, unjust consequences of the prior notice statute. As the Fourth Department noted, “[i]t is abundantly clear from the plain meaning of the statute (§ 50-e, subd 5) as amended (L 1976, ch 745) that the Legislature intended a most significant change to reduce unjust consequences to accident victims…” (Ziecker v. Orchard Park, 70 A.D.2d 422, 425 [4th Dept. 1979], aff’d, 51 N.Y.2d 957 [1980]). Applying the proper legislative intent leads to the conclusion that “a just claim for damages for a serious injury should not be forfeited for failure to give notice where the basic purpose of the statute is not offended and where no substantial prejudice exists.” (Id. at 427- 428). Therefore, a petition to file a late notice of claim ought to be reviewed not so strictly as the Second Department has done here, but rather in accordance with the First Department’s view that “the statute [GML § 50-e] is remedial in nature, and therefore should be liberally construed.” (Matter of Schiffman v. City of New York, 19 A.D.3d 206, 207 [1st Dept. 2005], citing Camacho v. City of New York, 187 A.D.2d 262 [1st Dept. 1992]; see also Martinez v. City of New York, 2008 N.Y. Slip Op. 32496(U) at *5 [Sup. Ct. N.Y. Cty. September 11, 2008] [“The court must bear 7 in mind that the statute permitting the court to allow the late filing of a notice of claim is a remedial one meant to be construed to allow, when possible, a claim to be heard on its merits.”]) At bar, the incapacitated minor petitioner Austin faced a torrent of factors that made it impossible for him to timely identify Respondent as a tortfeasor so as to file a notice of claim. A timely petition was not possible because: (i) Respondent’s alleged negligence left Austin physically and mentally incapacitated and unable to verbalize, as he remains to this day; (ii) the ongoing criminal investigation prevented the Newcombs from obtaining accident scene evidence (specifically police pictures) necessary to identify Respondent as a tortfeasor within 90 days; and (iii) after affirmatively creating the transitory negligent condition (i.e. the improperly placed “Sign”), Respondent removed the instrumentality of its alleged negligence before 90 days expired, thereby depriving the Newcombs the ability to timely establish notice. Special Term found that these factors constitute a clear “reasonable excuse” for the late filing. (R. at 6). Yet the circumstances rendering it impossible for Austin to satisfy the statute, through no fault of his own, were of no consequence to the Second Department’s holding. This injustice is only compounded by the fact that as soon as Appellants were able, they provided Respondent with police investigative pictures fully depicting the negligent condition as it existed at the time of the accident. Given these circumstances, denying Austin an opportunity to have his claim adjudicated 8 on the merits is a far cry from attaining the Camarella Court’s “equitable balance.” (34 N.Y.2d at 142-143). Instead, the denial of Austin’s petition in the face of the overwhelming circumstances places this case in rare, unprecedented company. The Second Department’s legally improper construction of GML § 50-e[5] is rooted in an erroneous application of the statute’s “actual knowledge” and “prejudice” standards. Both Special Term and the Second Department failed to consider the numerous facts that establish, as a matter of law, Respondent’s actual knowledge and a lack of prejudice. Respondent offered no admissible evidence as to how it might be prejudiced in defending against the merits of this claim. In contrast, the record evidence, which includes the detailed police pictures offered by the incapacitated minor, graphically shows the scene as it existed at the time of the accident. This evidence includes a full depiction of all elements of Appellants’ claim regarding the Sign, thereby enabling Respondent to conduct a full investigation of the claim, and overcome any prejudice. The record also demonstrates that Respondent had actual knowledge of the facts and circumstances underlying the claim because Respondent created the transitory negligent condition (i.e. improper placement of the oversized Sign at the “Intersection”) and removed the negligently placed Sign from the scene prior to 90 days following the accident. The lower courts also did not assign the appropriate legal weight to the fact that the incapacitated minor Austin was rendered physically and mentally 9 incapacitated as a result of the very negligence in question. The Second Department did not give any consideration to the fact that Austin was incapacitated throughout the entire statutory period and could not function, let alone take steps to preserve his legal rights. Further, the lower courts failed to consider that it was Respondent’s own action removing the Sign prior to 90 days following the accident, that deprived Appellants of the full statutory period in which to investigate the claim and therefore made statutory relief under GML § 50-e[5] necessary in the first place. Simply stated, under the Second Department’s method of construing GML § 50-e[5] the only way Austin would be entitled to have his late notice of claim allowed is if he had filed a timely notice. “[W]hen presented with a question of statutory interpretation, [the Court's] primary consideration is to ascertain and give effect to the intention of the Legislature…” (Samiento v. World Yacht Inc., 10 N.Y.3d 70, 77 [2008] [internal quotation marks omitted]; see Matter of DaimlerChrysler Corp. v Spitzer, 7 N.Y.3d 653, 660 [2006]). This Court has held that “[a]ny statute or regulation…must be interpreted and enforced in a reasonable…manner in accordance with its manifest intent and purpose.” (Matter of Sabot v. Lavine, 42 N.Y.2d 1068, 1069 [1977]). The Second Department has had occasion to recently follow this instruction, holding that “[a] statutory interpretation that is ‘contrary to the dictates of reason or leads to unreasonable results is presumed to be against the legislative intent.’” (People v. 10 Cook, 128 A.D.3d 928, 930 [2d Dept. 2015], quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 143, Comment at 288). However, the Second Department’s construing of GML § 50-e in this case is against reason and public policy because such construction provides a municipal defendant with a statutory reward based upon a crime being committed, a severe incapacitation caused by the municipality’s own negligence, and the municipality’s own removal of its negligent condition before the 90-day period expired. In Williams this Court held that GML § 50-e[5]’s statutory list is “nonexhaustive,” and intended to “provide[] flexibility for the courts…,” while all factors must go into the “mix” of circumstances. (6 N.Y. 3d at 538-539). Both the Second Department and Special Term have failed to place all factors into this required “mix.” (Id. at 538). The consequence is an arbitrary application of GML § 50-e[5] that fails to fulfill the statute’s intended legislative purpose and is based on factors neither supported by law nor substantiated by the record. This result is a clear abuse of the lower courts’ discretion as a matter of law. As such, reversal of the Second Department’s order is necessary. (Varkonyi v. Varig, 22 N.Y.2d 333, 337 [1968] [“Where, however, [the Appellate Division], in exercising its discretion, fails to take into account all the various factors entitled to consideration, it commits error of law reviewable by this court.”]) The Newcombs are entitled to have their petition granted as a matter of law. 11 STATEMENT OF FACTS Background of the Accident and the Investigation On March 23, 2013, Austin, a sixteen-year-old minor, was a pedestrian crossing the Intersection of Route 25 and Marshall Drive in Selden, New York. (R. at 23). While crossing in the crosswalk from the northwest corner of the Intersection, Austin was hit by a motor vehicle traveling westbound. (R. at 23). The vehicle was operated by Milissa O’Brien and owned by Anthony Bonella. (R. at 23). O’Brien and Bonella fled the scene of the accident and were criminally prosecuted for this offense by the Suffolk County District Attorney. (R. at 5, 23, 47). Both O’Brien and Bonella ultimately pled guilty. (R. at 5). As a result of the accident, Austin was left in critical condition. (R. at 56, ¶¶ 6-11; 57, ¶¶ 17-20). The accident left Austin in a comma and unable to verbalize. (R. at 55, ¶ 5; 56, ¶ 10). Austin sustained serious and potentially permanent injuries, including brain injury and skull fracture. (R. at 56, ¶ 6). Since the accident, Austin has undergone several surgeries and has been continuously confined to hospitals and/or bed, except for doctor visits and therapy. (R. at 56, ¶¶ 7-8, 10; 57, ¶ 19). Over the course of the five months following the Accident, Austin was transferred between several different hospitals and rehabilitation facilities. (R. at 56, ¶ 8). Austin was finally transferred home on September 5, 2013, where he remains confined other than for outside medical care. (R. at 56, ¶ 8; 57 ¶¶ 18-19). 12 Currently, Austin cannot feed himself, go to the bathroom on his own, dress himself, get out of bed on his own, or verbalize. (R. at 56, ¶ 10). He can mobilize only with a wheelchair. (R. at 56, ¶ 10). He requires ongoing and continuous therapy, including speech therapy, physical therapy, occupational therapy, and vision therapy. (R. at 57, ¶¶ 13, 17). Since the accident, Raymond and his wife Jenny have devoted their full time and attention to attending to their son and his medical needs. (R. at 56, ¶ 9; 57, ¶¶ 19-20). Respondent does not contest the severity of Austin’s injuries, or his inability to verbalize since the accident. Although he was not present when the accident occurred, within days following the accident, Raymond Newcomb reported the details of the accident to Austin’s school, Centereach High School. (R. at 5; 23; 56, ¶ 11). This report included the location of the Intersection and the severity of Austin’s injuries. (R. at 56, ¶ 11). Centereach High School is under Respondent’s auspices. (R. at 56-57, ¶ 12). Centereach High School provides Austin with some of his required rehabilitation services. (R. at 57, ¶ 13). In the Appellate Division, Respondent acknowledged that it knew that one of its students, Austin, was injured in a car accident on March 23, 2013 (Resp. 2d Br. at 5, 14), and conceded that it had placed the Sign at the accident location (Resp. 2d Br. at 4-5, 7, 13). Less than one month after the accident, the Newcombs’ counsel made a request to the Suffolk County Police Department Central Records (“Central 13 Records”) for a copy of the entire police file relating to the investigation into Austin’s accident. (R. at 33, ¶ 15). On or about April 12, 2013, counsel was informed by Central Records that “THERE WILL BE A DELAY IN SUPPLYING THE REQUESTED RECORD UNTIL THE CASE IS CLOSED.” (R. at 45 [emphasis in original]). Raymond Newcomb also attempted to obtain the police accident scene photos and was also informed by both the Suffolk County District Attorney’s Office and the Suffolk County Police Department that there would be a delay in providing the photos and video of the scene until after the close of the criminal case. (R. at 57, ¶ 15). With the Newcombs’ counsel continuing to press for release of the police pictures and video, on or about August 23, 2013, Ms. Jeanine Melanson, Head Clerk of the Suffolk County Police Department Identification Section, sent counsel a letter indicating that, because the criminal case remained pending, production would still be delayed. (R. at 47). During the delays attributable to the criminal investigation, the Newcombs’ own investigator took photographs of the accident scene within 90 days of the accident. (R. at 36, ¶ 30; 54). These photographs showed that the Sign was not present at the Intersection at that time. (R. at 54). As Special Term correctly concluded, Respondent removed its Sign prior to the expiration of the 90-day statutory period. (R. at 6, 54; Resp. 2d Br. at 12-13). 14 After repeated inquires, Suffolk County Assistant District Attorney Al Croce finally helped to facilitate production of the accident scene photos and videotape. (R. at 33, ¶ 16; 34, ¶ 18). On or about September 20, 2013, the Newcombs’ counsel first received contact sheets of the police photos and a police videotape of the scene immediately following the accident. (R. at 34, ¶¶ 19-20; 48-49). Inspection of the contact sheets revealed, for the first time, the existence of the previously unknown Sign at the northwest corner of the Intersection where Austin was struck. (R. at 48). However, the pictures on the contact sheet were extremely small, thereby preventing the ability to read the Sign’s contents, and the video did not capture the Sign. (R. at 34, ¶ 20; 48). Thus, it was impossible to determine who was responsible for placing the Sign. (R. at 34, ¶ 20; 48). Counsel then submitted a follow-up request with Central Records for larger versions of the police photos. (R. at 34, ¶ 21). On October 16, 2013, Central Records informed counsel that there would, once again, be a delay in providing the pictures. (R. at 50). On November 5, 2013, counsel finally received a full-sized version of the photographs depicting the accident scene. (R. at 34-35, ¶ 23; 51-52). The larger accident scene pictures allowed for the Sign’s content to be read and revealed, for the first time, that Respondent Middle Country was responsible for the Sign. (R. at 35, ¶ 24; 60, ¶ 5). The Sign contained an advertisement for a production of “The 15 Music Man,” taking place at Newfield High School. (R. at 25-29; 35, ¶ 24; 68-69). Newfield High School is a school under Respondent’s auspices. (R. at 35, ¶ 24; 60, ¶ 5). These larger pictures also revealed that the Sign remained at the Intersection on March 23, 2013, although the Sign indicated the final performance of the production was a week earlier, on March 17, 2013. (R. at 25-29; 35, ¶ 24; 68-69). Respondent’s placement of the Sign at the Intersection, and Respondent’s removal of the Sign prior to 90 days following the accident, are not in dispute. (R. at 6, 54; Res. 2d Br. at 5, 7, 12-13). PROCEDURAL BACKGROUND The Petitioners-Appellants’ Proposed Notice of Claim On November 25, 2013, the Newcombs served their proposed Notice of Claim upon Respondent Middle Country via certified mail. (R. at 19-29.2). Raymond Newcomb filed the claim on behalf of himself and as natural guardian for his incapacitated minor son, Austin Newcomb. The proposed Notice of Claim included the Suffolk County police report and the larger set of police pictures depicting the Sign at the Intersection at the time of the accident. (R. at 19-29). The substance of the Newcombs’ claim against Respondent is that Respondent negligently placed, maintained, and failed to timely remove the overly large Sign from the corner of the Intersection. (R. at 19-29). The proposed Notice of Claim also alleges that Respondent improperly selected the location at which to place the Sign. (R. at 19). 16 The Newcombs claim the Sign obstructed the view and lighting for both pedestrians and oncoming traffic at the Intersection, created a distraction for oncoming drivers, created a hazard, and caused or otherwise contributed to Austin’s accident. (R. at 19-29). The pictures, which were included with the proposed Notice of Claim, reveal all pertinent information relative to the Newcombs’ claim. (R. at 25-29; 68- 69). Special Term’s Decision The Newcombs brought a petition by way of Order to Show Cause in the Suffolk County, Supreme Court seeking to have the proposed Notice of Claim be deemed timely filed nunc pro tunc. (R. at 10-29.2). In its order denying the Newcombs’ petition, Special Term found that Austin’s incapacitation and the delay attributable to the criminal investigation provided “a reasonable excuse for the petitioner[s]’ delay in service” of the Notice of Claim. (R. at 6). Special Term further found that for purposes of the petition, “the school district was possessed of actual or constructive knowledge of the placement of the [S]ign advertising the school musical and its removal some time after the accident.” (R. at 6). Yet despite these findings, the court denied the petition incorrectly reasoning that “no one, including the petitioner, had actual knowledge of essential facts underlying a legal theory against the school district until the scene photographs became available in November of 2013…” (R. at 7). 17 The court correctly noted that “[t]he burden is on the respondent, not the petitioner” to demonstrate prejudice by the delayed filing. (R. at 7). Respondent’s only proffer of prejudice was a general statement in an affirmation of counsel without personal knowledge that it was not able to conduct a timely investigation. (R. at 64, ¶ 15). Further, in denying the petition Special Term also assumed facts dehors the record. (R. at 7). Specifically, the court presumed without any evidentiary support that “[m]atriculation and graduation of students and personnel changes presumably hinder the school district’s ability to gather information about the creation of the [S]ign and the decision about where and how to position it.” (R. at 7). Special Term’s decision did not consider the significance of the police accident scene photographs. (R. at 4-8). The Appellate Division, Second Department’s Determination The Second Department held that: [e]ven assuming that the School District was responsible for the placement of the sign, the petitioners failed to establish that the School District became aware, within 90 days after the claim accrued or a reasonable time thereafter, that the placement of the sign was connected with the happening of the accident in a way that would give rise to liability on the part of the School District. (R. at 85). The court concluded by stating that “the petitioners failed to demonstrate that their delay in serving a notice of claim would not substantially prejudice the School 18 District’s ability to defend against the claim on the merits.” (R. at 85). The court made no reference to: (i) the severe incapacitation of the minor petitioner caused by the alleged negligence; (ii) the criminal investigation engendering the delay; (iii) Special Term’s finding of a reasonable excuse for the delayed filing; (iv) Raymond Newcomb’s prompt report of the accident, Austin’s injuries, and the accident location to a school under Respondent’s control; (v) Respondent’s removal of the Sign prior to 90 days following the accident; or (vi) the police pictures depicting the scene immediately after the accident. Further, as was the case with Special Term’s decision, the Second Department did not address the merits of Appellants’ claim. This approach is proper because at this stage of the proceedings, all of Appellants’ factual allegations are to be taken as true and afforded every favorable inference. (See Matter of Alaimo v. Nassau Cty. Dept. of Hlt., 151 A.D.2d 570, 570 [2d Dept. 1989]; Matter of Halperin v. City of New York, 127 A.D.2d 461, 463 [1st Dept. 1987]; Matter of Day v. Greenburgh Eleven Union Free School Dist., 88 A.D.3d 877, 877 [2d Dept. 2011]; City of New York v. State of New York, 27 Misc.3d 1207(A) at *3 [N.Y. Ct. of Cl. December 23, 2009] [“In determining [a late notice motion], it is presumed that all the facts asserted by a claimant are true.”]) 19 ARGUMENT POINT I THE NECESSARY ACTUAL KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES OF THE CLAIM IS ESTABLISHED AS A MATTER OF LAW BECAUSE RESPONDENT CREATED THE CONDITION AND SUBSEQUENTLY REMOVED SUCH CONDITION PRIOR TO 90 DAYS FOLLOWING THE ACCIDENT While this Court has made clear in Williams that all factors surrounding a petition must be taken into account, (6 N.Y.3d at 537-539), the Newcombs have, as a matter of law, satisfied the “actual knowledge” prong of GML § 50-e[5]. The purpose of the notice statute is to allow a public corporation the opportunity to conduct a prompt investigation. Here, this purpose is satisfied because the public corporation’s own agents created and remedied the transitory condition at issue (i.e. the Sign). As the Second Department has previously held, “the overall circumstances of this matter support an inference that the [public corporation] defendant[] effectively received actual notice of the essential facts constituting the claim” well within the 90-day statutory period. (Bakioglu v. Tornabene, 117 A.D.3d 658, 659 [2d Dept. 2014]; see St. Paul Guardian Ins. Corp. v. Pocatello Fire Dist., 90 A.D.3d 761, 762 [2d Dept. 2011]; Matter of Vasquez v. City of Newburgh, 35 A.D.3d 621, 623 [2d Dept. 2006]). Special Term expressly found “that before the accident the school district [Respondent Middle Country] was possessed of actual or constructive knowledge 20 of the placement of the [S]ign advertising the school musical and its removal sometime after the accident.” (R. at 6). Respondent does not dispute these facts. (R. at 59-66; Res. 2d Br. at 5, 7, 12-13). Undeniably, Respondent’s agents were responsible for placing the Sign at the Intersection and the Sign’s subsequent removal. Yet, the Second Department has departed from the other Judicial Departments, and its own precedent, by adopting a legal definition of actual knowledge that excludes a public corporation’s own negligent actions from satisfying the statutory standard. This Court has held that notice to the public corporation of the legal theory underlying the claim is not required. (See Williams, 6 N.Y.3d at 537). Rather, as the Second Department itself has observed, [i]n order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the [N]otice of [C]laim; the public corporation need not have specific notice of the theory or theories themselves. (Claud v. West Babylon Union Free School District, 110 A.D.3d 663, 664 [2d Dept. 2013] [internal quotations omitted]; see Leeds v. Port Wash. Union Free Sch. Dist., 55 A.D.3d 734, 735 [2d Dept. 2008] [specific notice of theory not required]). The facts underlying the Newcombs’ legal theory are clear and unambiguous. The oversized and irregularly shaped Sign’s placement at the Intersection and its delayed 21 removal, were substantial, contributing factors to Austin’s accident. In these circumstances, where the public corporation affirmatively created and removed the alleged negligent condition it is by definition possessed with actual knowledge of the negligent condition it creates, and ultimately remedies. This conclusion is amplified here by the fact that Respondent’s placement of the Sign violated the town regulations implemented to specifically prohibit Respondent’s very action. (See Town of Brookhaven Code, §§ 57A-1[c], 57A-9[b], 57A-12[c] [Effective June 4, 1997]). An additional source of knowledge was the prompt report Respondent received detailing the accident, the accident’s location, and Austin’s injuries. A. Because Respondent Negligently Placed the Sign at the Intersection, it Possessed Actual Knowledge of the Facts and Circumstances of Appellants’ Claim The prior decisional law finding that actual knowledge exists where the public corporation creates the negligent condition is based upon common sense, logical principles. In such circumstances, knowledge of the facts comprising the negligence claim is obtained from the moment the public corporation’s employees’ negligent actions commence. At bar, the Second Department has construed GML § 50-e[5] in a way that abandons its own well-established precedent whereby actual knowledge is found to exist when the public corporation’s own employees are responsible for affirmatively creating the negligent condition. (See Erichson v. City of 22 Poughkeepsie Police Dept., 66 A.D.3d 820, 821 [2d Dept. 2009] [actual knowledge was found where the public corporation’s “own employees engaged in the conduct which gave rise to the claim”]; Gibbs v. City of New York, 22 A.D.3d 717, 719 [2d Dept. 2005] [actual knowledge was predicated on the fact that the public corporation’s employees “performed the acts complained of”]; Picciano v. Nassau County Civ. Serv. Commn., 290 A.D.2d 164, 174 [2d Dept. 2001] [“defendants had actual knowledge of the facts underlying the plaintiff’s claim, as their own employees engaged in the conduct which gave rise to the claim”]). Importantly, Respondent has already acknowledged that the touchstone of these prior holdings finding actual knowledge is that in such instances, the public corporation “performed the acts of negligence.” (Resp. 2d Br. at 15). Appellants respectfully submit that the case at bar should be decided in accordance with the precedent that even Respondent agrees is correct. The precedent in each of the other Judicial Department’s is in full accord with this reasoning. The First Department has consistently held that when a public corporation’s agents perform the negligence complained of, actual knowledge is imputed to the public corporation itself. (See, e.g., In re Thomas, 118 A.D.3d 537, 538 [1st Dept. 2014] [actual knowledge supplied where public corporation’s vehicle involved in accident and agent was driving the vehicle]; Nunez v. City of New York, 307 A.D.2d 218, 219-220 [1st Dept. 2003] [actual knowledge of false arrest and 23 malicious prosecution claims imputed to City, as Police Department possessed all essential facts]; Ansong v. City of New York, 308 A.D.2d 333, 333-334 [1st Dept. 2003] [actual knowledge of assault claim imputed to City where City Police officers allegedly assaulted petitioner]; Ayala v. City of New York 189 A.D.2d 632, 633 [1st Dept. 1993] [actual knowledge found where the public corporation knew the facts and circumstances surrounding the claim because its employees caused the negligence]; Justiniano v. N.Y. City Hous. Auth. Police, 191 A.D.2d 252, 252-253 [1st Dept. 1993] [holding that where police officers in City’s employ made arrest and initiated investigation, actual knowledge of false arrest and malicious prosecution claim imputed to the City]). Significantly, the Second Department’s holding in Gibbs was based on the First Department’s holding in Ayala. Yet, the Second Department decided the case at bar without any regard for this enduring precedent. In Whitehead v. Centerville Fire Dist., (90 A.D.2d 655, 655-656 [3d Dept. 1982]), the Third Department held that the public corporation possessed the requisite knowledge because its employees were involved with the condition giving rise to a claim regarding a collision. (See also Kavanaugh v. Mem. Hosp. & Nursing Home, 126 A.D.2d 930, 931 [3d Dept. 1987] [actual knowledge found where “[t]he operative facts of the [negligent complaint] rendered by [the public corporation] form the basis of its alleged negligence and would be contained in its own record”], 24 citing Rechenberger v. Nassau County Med. Center, 112 A.D.2d 150, 152 [2d Dept. 1985]; Hamm v. Mem. Hosp. of Greene County, 99 A.D.2d 638, 638 [3d Dept. 1984] [finding actual knowledge where “the allegedly negligent acts were performed by defendants’ agents”]). Similarly, the Fourth Department, in Matter of LaMay v. County of Oswego, (49 A.D.3d 1351, 1352 [4th Dept. 2008]), found that the municipal defendant had actual knowledge because those under its auspices “were directly involved in all aspects of the claim.” [internal quotations omitted]. The Fourth Department relied on the same reasoning to find actual knowledge in Clark v. Roswell Park Cancer Inst. Corp., (92 A.D.3d 1273, 1274 [4th Dept. 2012]), holding that actual knowledge existed because the actions taken by the defendant in that case (alleged negligent medical treatment) “form[ed] the basis of the alleged [claim].” In assessing the Newcombs’ petition, the lower courts failed to take into account that placement of the Sign at the Intersection constitutes sine qua non of Austin’s negligence claim against Respondent. Therefore, because of its own actions relating to the placement of the Sign Respondent had actual knowledge of the essential facts underlying the Newcombs’ legal theory. The cases finding the presence of actual knowledge based on a public corporation’s affirmative acts of creating negligent conditions are anchored by this Court’s precedent of Noseworthy v. New York. (298 N.Y. 76, 80-81 [1948]). In 25 Noseworthy, this Court held “that where the management and control of the thing which has produced the injury is exclusively vested in the defendant, it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present.” (298 N.Y. at 80, quoting Griffen v. Manice, 166 N.Y 188, 193-194 [1901]). Noseworthy makes clear that a tortfeasor committing an act of negligence is in a better position to know about the facts surrounding the instrumentality of the negligence than the victim of such negligence. Yet both the Second Department and Special Term have construed GML § 50-e[5]’s actual knowledge showing without regard to the principles in Noseworthy. Here, because Respondent placed the Sign at the Intersection, Respondent is in a superior position to know the relevant facts concerning the Sign than the incapacitated minor Austin. Properly considering these factors should result in the granting of the Newcombs’ petition. Even if, arguendo, Special Term’s assessment that “no one,” (R. at 7), knew that the Sign would cause Austin’s accident was correct, applying the precedent of Noseworthy ought to have still resulted in the petition being allowed because Respondent was in exclusive control of the evidence regarding its own Sign. Further, a public corporation should have documentation and recordkeeping concerning the activities of its employees and agents. Undeniably, the effects of negligently placing such a Sign at a busy Intersection are immediately apparent to the party responsible for its placement. 26 Further still, Raymond Newcomb made Respondent aware of Austin’s injuries and the manner in which they arose at the very Intersection where Respondent had placed its Sign. Respondent’s notice of the facts and circumstances underlying the negligence claim is also revealed by the fact that the Sign was placed in contravention of several provisions of the Town of Brookhaven Code. The Newcombs referenced the substance of Respondent’s code violations in their proposed Notice of Claim by alleging, inter alia, the Sign created a hazard and that Respondent was negligent in “improperly selecting the location at which to place said sign.” (R. at 19-20). Appellants referenced the code violations in both its opening Appellate Division Brief (App. 2d Br. at 10-11 n. 2), and their reply brief (Reply 2d Br. at 15). Further, the police pictures served on Respondent with the Notice of Claim graphically depict Respondent’s code violations. (R. at 25-29; 68-68). In the Appellate Division, Respondent did not contest that the Sign violated the Town of Brookhaven Code. The large Sign was improperly positioned too close to the Intersection, (Town of Brookhaven Code § 57A-12[c]), and undeniably lacked the proper clearance between its bottom and street grade, (Town of Brookhaven Code § 57A-9[b]). These code provisions are designed to “[p]rotect the public from improperly located or distracting signs which create a hazard to said public by virtue of their construction, location, and/or illumination.” (Town of Brookhaven Code § 57A-1[c]). This 27 purpose states the very heart of the Newcombs’ negligence claim regarding the Sign. Respondent’s knowledge of the harmful consequences engendered by its actions is solidified by the town’s enactment of ordinances designed to prevent Respondent’s very actions. The cases relied upon by the two lower courts and Respondent are inapposite to the settled law finding actual knowledge when a public corporation affirmatively creates a negligent condition. For example, in Matter of Devivo v. Town of Carmel, (68 A.D.3d 991, 992 [2d Dept. 2009]), and Matter of Wright v. City of New York, (66 A.D.3d 1037, 1038 [2d Dept. 2009]), relied upon by the Second Department to support its determination (R. at 85), the focus of the court’s finding was that the police report did not provide the public corporation with actual notice of the essential facts constituting the claim. Here, the police report is irrelevant because it is the Respondent’s own actions in creating the negligent condition that provides notice of the claim. The Second Department’s holding regarding actual knowledge rests on a faulty understanding of the precise negligence Appellants’ are claiming against Respondent. The Appellate Division relied on Matter of Mitchell v. City of New York, (77 A.D.3d 754, 755 [2d Dept. 2010]), to support its conclusion that Respondent was not aware within 90 days after the claim accrued or a reasonable time thereafter, that placing the Sign was connected with the happening of the 28 accident and could give rise to Respondent’ liability. (R. at 85). Choosing to rely on Mitchell to support this finding reveals the Second Department’s legal error. In Mitchell, the Second Department found that the public corporation lacked knowledge of any connection between the alleged failure to maintain a guardrail and the happening of the accident. Mitchell’s inapplicability to the Newcombs’ claim is clear from these facts. In cases such as Mitchell, the instrumentality in question (i.e. a properly placed guardrail) is not negligently placed or created by the municipality from its inception, but rather deteriorates over time to become a negligent condition. In these instances, there is no negligence at the time the public corporation originally creates the condition. In sharp contrast, the Newcombs’ claim is not that a condition somehow deteriorated over time to become negligent. Rather, the negligent condition was created by the municipality from the very moment it placed the Sign at the Intersection in question. Clearly, such facts stand in stark contrast to those present in Mitchell. The Second Department’s error is also illustrated by analyzing the internal contradictions within Special Term’s affirmed order. Special Term specifically found that Respondent had “actual or constructive knowledge of the placement of the [S]ign…and its removal some time after the accident.” (R. at 6). Yet Special Term somehow concluded that this “knowledge, however, is not the ‘notice’ that is required to excuse a late notice of claim.” (Id.). Special Term explained its 29 reasoning by, at first correctly, citing the statutory standard that “the critical inquiry is whether the governmental entity acquired actual knowledge of the essential facts constituting the claim against it within the statutory period or a reasonable time thereafter.” (R. at 6 [citations omitted]). However, Special Term failed to realize that, just two sentences prior in its order, it had already identified those very facts that constitute the Newcombs’ negligence claim (i.e. the Sign’s placement and removal) and explicitly found that Respondent had prior knowledge of such facts. (Id.). Special Term’s own reasoning ignored the simple facts and the court’s own finding that it was Respondent who unquestionably placed and removed the Sign from the Intersection. Thus, Special Term’s affirmed order misapplied the legal standard to its own factual findings, thereby creating an erroneous result as a matter of law. The failure to properly appreciate the basis of Appellants’ negligence claim results in the further legal error of requiring a GML § 50-e[5] petitioner to make a heightened showing beyond that which is required in any negligence case. This Court has cautioned that “questions of proximate cause and foreseeability should generally be resolved by the factfinder.” (See Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 737 [2014]). In Gordon v. Eastern Ry. Supply, (82 N.Y.2d 555, 562 [1993]), this Court held that “[d]efendants are liable for all normal and foreseeable consequences of their acts,” and a “plaintiff need not demonstrate that the precise 30 manner in which the accident happened or the injuries occurred was foreseeable…” Yet, this type of foreseeability is precisely what the Second Department required the Newcombs to show under GML § 50-e[5]. The Second Department identified the very facts underlying the claim when it found that “the school district was responsible for the placement of the [S]ign.” (R. at 85). Further requiring the Newcombs to show that Middle Country was aware of precisely how the Sign would cause Austin harm is a clear departure from the settled law of Gordon. The lower courts incorrectly required the Appellants to show that, despite the fact that Respondent placed and removed the Sign at the subject Intersection, the Sign would bring about Austin’s harm in this particular manner. (R. at 7). The Second Department’s holding ignores the fact that Respondent, like any person or entity, acquired knowledge of its potential liability from the very first moment it negligently created the conditions at the Intersection. In contrast, the holding improperly requires a petitioner to show that the municipality was clairvoyant and could see the exact circumstances of the happening of a future accident resulting from its negligent act(s). Such ruling is contrary to Gordon and an improper mingling of a threshold GML § 50-e[5] petition with the jury’s role regarding foreseeability. (See Mirand v. City of New York, 84 N.Y.2d 44, 51 [1994] [proximate cause determination, involving whether chain of events following negligent act of omission is foreseeable, is a fact question for the jury]). 31 This Court’s decision in Williams solidifies Appellants’ contentions regarding the actual knowledge standard. In passing upon whether a hospital had actual knowledge of a medical malpractice claim involving the birth process, this Court held in Williams “[w]here, as here, there is little to suggest injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim.” (6 N.Y.3d at 537). Williams makes clear that knowledge of an injury associated with municipal action is relevant to the actual knowledge analysis. The case at bar contrasts sharply with the malpractice allegations in Williams because the facts underlying the Newcombs’ negligence claim were made known by virtue of the initial placement of this particular Sign in this particular manner at this particular Intersection. The act of placement is the fact of the negligence. Placement of the Sign was in violation of the Town of Brookhaven Code. Further, Respondent’s negligent act of placing the Sign at the Intersection is confirmed by taking into account the shape, size, and color of the Sign as well as the configuration of the heavily trafficked cross-walk and Intersection. Further, the Sign was placed in such a way as to attract maximum exposure from westbound oncoming traffic approaching the Intersection. At this stage of the proceeding, this negligent placement must be taken as true and Appellants are to be afforded every favorable inference concerning the evidence. 32 The lower courts’ statutory construction concerning actual knowledge also creates internal inconsistencies in lawsuits against municipalities. In the leading case of Amabile v. City of Buff., (93 N.Y.2d 471, 474 [1999]), this Court recognized, as an exception to the rule requiring that a municipality receive prior written notice, those instances where the municipality created the defect or hazard through an affirmative act of negligence. (See also Kiernan v. Thompson, 73 N.Y.2d 840, 841- 842 [1988] [“since the City created the crack in the pavement, plaintiff was not required to provide it with prior written notice of the unsafe condition”]; Abano v. Suffolk County Cmty. Coll., 66 A.D.3d 719, 719 [2d Dept. 2009] [recognizing as an exception to a prior written notice requirement a “municipality’s affirmative creation of the defect”]). This Court has held that affirmative municipal acts dispense with applying prior written notice laws precisely because the public corporation, by definition, has knowledge of the affirmative conditions it creates. For this reason this Court has held that the affirmative negligence exception applies to those municipal actions (such as improperly placing an overly large Sign at a busy Intersection in violation of the town code) that immediately result in a dangerous condition. (See Oboler v. City of New York, 8 N.Y.3d 888, 889-890 [2007]; Methal v. City of New York, 116 A.D.3d 743, 743-744 [2d Dept. 2014]). Applying Amabile, the Newcombs would not need to demonstrate compliance with any prior written notice laws because the basis of the claim is the public 33 corporation’s affirmative act of creating a dangerous negligent condition. (See 93 N.Y.2d at 473-474, citing Blake v. City of Alb., 48 N.Y.2d 875 [1979]). Yet following the Second Department’s current holding, the same petitioners cannot as a matter of law rely on the very same affirmative conduct to establish actual knowledge of the facts of the claim itself for a GML § 50-e[5] petition. Paradoxically, the same municipal actions that provide adequate notice are at the same time construed to be inadequate to provide notice. The bedrock principle of cases such Amabile and Gibbs are the same – affirmatively creating a negligent condition provides sufficient notice. Contrary to Respondent’s prior contentions, recognizing that cases falling under Amabile’s rubric meet the actual knowledge standard is not an attempt to graft a judicially created prior notice exception upon GML § 50-e or dispense with a notice of claim all together. The whole purpose of GML § 50-e[5] is to enumerate those instances where strict adherence to filing a notice of the claim within 90 days can be eased. The very subject of Amabile - those situations where a municipality’s actions provide adequate notice - is one such class of cases that satisfy the GML § 50-e[5] inquiry. B. Respondent’s Removal of the Sign Prior to 90 days Following the Accident Provides an Independent Ground for Finding Actual Knowledge Among the several factors that both Special Term and the Second Department failed to consider in assessing the Newcombs’ petition is the Respondent’s 34 undisputed removal of the Sign from the accident scene before 90 days elapsed following Austin’s accident. As a matter of law, this removal affords Respondent with actual knowledge of the claim within 90 days. The removal should also trigger the application of equitable estoppel precluding Respondent from raising untimely notice as a defense. (See Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 668 [1976] [“The equitable bar to a defense may arise by virtue of positive acts, or omissions where there was a duty to act.])” Prior to its current holding, the Second Department followed the rule whereby a Respondent’s removal of a negligent condition provided actual knowledge. In Matter of Battle v. City of New York, (261 A.D.2d 614, 614 [2d Dept. 1999]), the Second Department found that “the City received actual knowledge of the essential facts constituting the claim within 90 days of its accrual…” because “[t]he City’s own employees were involved in remedying the violations cited…” This Court has cited Battle with approval in its holding in Williams. (See Williams, 6 N.Y.3d at 539 n. 4). Battle’s principle, once again, stems from common sense. A public corporation remedying the condition complained of within 90 days necessarily acquires actual knowledge of the facts underlying a claim resulting from the very condition which the public corporation remedies. This is precisely the holding that ought to be applied to the Newcombs’ petition. 35 At bar, it is undisputed that Respondent removed the Sign prior to 90 days following the accident. The accident scene photos taken by the Newcombs’ investigator within 90 days confirm Respondent’s removal of the Sign. (R. at 54). This removal was tantamount to an inspection of the accident scene within 90 days, and provided an opportunity for investigation. (See, e.g., Rivera v. City of New York, 169 A.D.2d 387, 389-390 [1st Dept. 1991] [“If one of defendant’s agents had been dispatched to the scene, he or she undoubtedly would have been able to discover the [alleged negligent condition] almost immediately.”]) Because Respondent took such remedial action, it was necessarily apprised of the critical facts surrounding the Sign’s negligent placement at the Intersection.2 These facts form the basis of the Newcombs’ claim and include the size, position, dimensions, location, and color of the Sign, as well as the Sign’s violation of town code provisions. The Second Department erred by failing to consider and apply Battle’s ruling. Failing to follow Battle leads to a fundamental error in construing GML § 50-e[5]. In its essence, the Second Department’s holding rewrites the statute by compressing the GML § 50-e 90-day time limit. The Second Department’s holding improperly 2 Respondent’s removal of the Sign took place at a time when it was apprised of the fact that Austin had been involved in a serious accident and suffered serious injuries at the very Intersection where the removal was taking place. The report and removal both took place within 90 days following the accident. 36 shortens the statutory period to file a notice of claim by necessarily aligning the time before the municipality remedies or removes the negligent condition with the legally permissible time in which to file a claim. The Second Department has effectively allowed the Respondent to create its own statute of limitations and unilaterally dictate the legally permissible time in which to file a claim. This is precisely what has occurred in the case at bar. Had Respondent not removed the Sign prior to 90 days, the Newcombs’ investigator and his pictures taken within 90 days would have revealed the Sign and Respondent would have been able to timely identify Respondent as a potential tortfeasor. (R. at 54). The Newcombs were, therefore, required to seek statutory relief under GML § 50-e[5] because of Respondent’s own actions in removing the Sign. After such a sequence, Respondent should be estopped from arguing a lack of notice. Adhering to the Second Department’s order would mean that a public corporation can now remove a transitory negligent condition it creates that causes an accident prior to the statutorily designated 90 days and then successfully escape liability based upon lack of notice and prejudice. Such a rule is counter to GML § 50-e’s plain meaning because it allows for a public corporation to shorten the time afforded a claimant under the statute. Battle, together with cases such as Gibbs, was the safeguard that prevented this inequity. Applying Battle assured that a claimant 37 such as Austin, incapacitated as a result of brain injuries, was not left without any means of showing the Respondent had actual knowledge of the claim. The importance of Battle’s holding is highlighted in this case where further obstacles (such as incapacitation and a criminal investigation) prevented timelier discovery of the negligent condition Respondent itself created. As referenced infra, properly applying Battle is also essential to ensure that GML § 50-e[5] is not construed in a way that violates public policy. C. Respondent’s Receipt of the Report of the Accident Provides Further Actual Knowledge Because Respondent was Made Aware Within 90 Days of an Accident Taking Place at a Location Where it Knew its Sign was Placed and Removed Raymond Newcomb’s report made within 90 days of Austin’s accident (R. at 5; 56, ¶ 11), furnished Respondent with an additional source of actual knowledge. The following facts regarding the report are not in dispute: i) the report was made to an entity under Respondent’s auspices, Centereach High School; ii) the report included the accident location; iii) the report described the severity of Austin’s injuries; and iv) the report was made within the 90-day time period following the accident and when Respondent removed the Sign from the Intersection. Ignoring these facts, the Second Department failed to consider Respondent’s own admissions that “[Respondent”] was aware that one of its students was injured in a car accident on a Saturday night…” and that “officials at another high school within the 38 [Respondent] were aware that a sign had been placed on a public street...” (Resp. 2d Br. at 5). Respondent was made aware of both Austin’s accident and injuries and possessed knowledge that its Sign was present at the accident location. Failing to find actual knowledge under these circumstances constitutes legal error because the uncontested facts of the report and Sign’s removal, both taking place within 90 days, assure as a matter of law that Respondent had knowledge that it could be subject to a claim resulting from the instrumentality it had placed and removed from the same location where it knew an accident occurred. The lower courts’ holdings also improperly create a new standard whereby a single individual or unit within a municipality must have the combined knowledge before actual notice can be found. The Second Department erred by failing to consider any of the legal implications relative to Raymond’s report. (R. at 84-85). Special Term erred by finding that the report did not provide knowledge because “[a]warness of an accident and the severity of the ensuing injuries, without more, does not constitute notice of the claim.” (R. at 6 [citation omitted]). Special Term’s affirmed holding amounts to legal error because the lower court did not recognize that there was something “more.” Specifically, Raymond’s report established a common nexus between the accident location and the location where Respondent knew it had placed its Sign. Following this report, Respondent was undeniably aware that both things occurred 39 at the same location. Because Respondent had knowledge of both the particulars of the accident location and the knowledge that its Sign was placed at the precise accident location, the report conveyed sufficient information to apprise Respondent of the potential claim relating to its Sign. (See Matter of Fennell v. City School District of Long Beach, 118 A.D.3d 783, 784 [2d Dept. 2014] [report documented in the school records which “described the time and date of the accident, the petitioner’s injury, and how the accident occurred” provided the school district with actual knowledge within the 90 days after the claim arose]; Bovich v. E. Meadow Pub. Lib., 16 A.D.3d 11, 20 [2d Dept. 2005]) [“library received contemporaneous actual notice of the facts underlying the plaintiffs’ claim, and that her injuries were sufficiently serious as to warrant an investigation”]; Matter of Zimmet v. Huntington Union Free School Dist. [District No. 3], 187 A.D.2d 436, 436 [2d Dept. 1992]; Matter of Bird v. Port Byron Cent. School Dist., 231 A.D.2d 916, 916 [4th Dept. 1996]; Matter of Urban v. Waterford-Halfmoon Union Free School Dist., 105 A.D.2d 1022, 1024 [3d Dept. 1984]). In the Appellate Division, Respondent argued that because the report of the accident was given to a different school within the Respondent district (Centereach) than the one within the Respondent district who placed and removed the Sign (Newfield), the report was somehow ineffective to provide notice to the school 40 district itself. (Res. 2d Br. at 13). This argument ignores the reality that the school district, being the central authority, is imputed with the knowledge acquired by its agents and subsidiaries. Moreover, the Second Department has itself previously rejected Respondent’s argument concerning this type of report. In Cicio v. City of New York, (98 A.D.2d 38, 39 [2d Dept. 1983]), the City of New York attempted to advance the argument that notice to the Sanitation Department did not equate with actual knowledge possessed by the City, the umbrella municipality. The Second Department emphatically rejected this argument, finding that the accident report given to one of the city’s departments provided the City itself with knowledge. (See id. at 39-40, citing Matter of Lucas v. City of New York, 91 A.D.2d 637 [2d Dept. 1982]; Matter of Somma v. City of New York, 81 A.D.2d 889 [2d Dept. 1981]; see also Sosa v. City of New York, 124 A.D.3d 515, 515 [1st Dept. 2015] [knowledge gathered by police investigative unit imputed to City]). So too is it with the report in this case, particularly in light of the fact that the Respondent school district is exponentially smaller than the City of New York. Within 90 days following the accident, Raymond Newcomb provided one of Middle Country’s departments (Centereach High School) with all of the pertinent information concerning Austin’s accident at a time when Middle Country acknowledges that it was aware that its Sign was present at the very same accident scene. 41 The critical judicial inquiry centers upon whether the public corporation has the necessary knowledge, not what it chooses to do with the information once presented. A petitioner such as Austin cannot have his claim forfeited because a public corporation chooses not to follow-up on reports, or have a central source for properly coordinating and investigating information obtained. (See, e.g., Rivera, 169 A.D.3d at 390 [“The [public corporation’s] evident choice not to avail itself of the opportunity to conduct an investigation is not plaintiff’s responsibility.”]) As Appellants argued below (Reply 2d Br. at 7), not finding actual knowledge under these circumstances raises additional public policy concerns because such holding would provide a public corporation with an incentive not to actively investigate reports of accidents they receive. POINT II THE SECOND DEPARTMENT ERRED IN FINDING PREJUDICE BECAUSE THE INFANT PETITIONER PLACED UNDISPUTED EVIDENCE INTO THE RECORD DEMONSTRATING HOW RESPONDENT IS ABLE TO CONDUCT A FULL INVESTIGATION OF THE CLAIM AND DEFEND ON THE MERITS WHILE RESPONDENT OFFERED NO ADMISSIBLE EVIDENCE SHOWING PREJUDICE The Second Department’s unsubstantiated conclusion that Respondent was substantially prejudiced by late notice of claim provides multiple independent grounds upon which to reverse the order and grant the Newcombs’ petition. First, the lower courts abused their discretion and committed clear legal error by finding prejudice, despite the record being devoid of any evidence of same. Likewise, the 42 lower courts compounded this error by presuming evidence of prejudice dehors the record. (See Heiman v. City of New York, 85 A.D.2d 25, 30 [1st Dept. 1982] [rejecting inference of substantial prejudice based on city’s mere “speculative possibility” of same]). Respondent’s only reference to prejudice came from sources that have long been found both by the Second Department itself and the other Judicial Departments to be inadmissible and legally inadequate. Second, the lower courts erred as a matter of law by ignoring evidence (such as certified police pictures of the accident scene) historically found once again by the Second Department itself and other Judicial Departments to be legally sufficient to satisfy a petitioner’s showing that no prejudice exists. Third, the Second Department’s holding deviates from the well-reasoned holdings of the other Judicial Departments by improperly saddling the incapacitated infant petitioner with a heighted burden of demonstrating a lack of prejudice. These legal errors have resulted in a misapplication of GML § 50-e[5]’s prejudice factor. The Newcombs have indisputably demonstrated that Respondent Middle Country had adequate notice of this claim within 90 days, thereby dispensing with any prejudice. (See Ansong, 308 A.D.2d at 334 [no prejudice where police department acquired actual and immediate knowledge through its employees involvement in the incident]). Even assuming, arguendo, Respondent did not have 43 actual notice of the claim, the petition should be granted because there is simply no evidence showing Respondent is prejudiced in its ability to defend the claim. Because its finding of prejudice rests on an absence of any evidence, the Second Department’s holding necessarily equates a late notice of claim with a reflexive finding of prejudice. Such a rationale completely eliminates the need for any prejudice analysis. Yet, as this Court made clear in Williams, the determination of whether a public corporation has been prejudiced by the delayed filing is an independent prong of the GML § 50-e[5] inquiry that must be separately considered. (See 6 N.Y.3d at 538-539). Thus, by definition, a finding that the public corporation did not have actual knowledge does not result in an automatic finding of prejudice. The Second Department itself in Matter of Underwood v. N.Y. City Hous. Auth., (177 A.D.2d 698, 699 [2d Dept. 1991]), based its holding on this very principle. In Underwood, the Second Department allowed the late notice, holding that although the [public corporation] may not have had actual notice of the claim within the statutory 90-day period (see, Matter of Reisse v. County of Nassau, 141 A.D.2d 649), we are nevertheless persuaded that the delay in service of a notice of claim will not cause the [public corporation] to suffer prejudice in defending this action. (177 A.D.2d at 699). Significant is that the Second Department has adopted the principle of Underwood in the specific context of a petitioner who was severely incapacitated due to a public corporation’s alleged negligence. (See, e.g., Matter of Haeg v. County of Suffolk, 30 A.D.3d 519, 520 [2d Dept. 2006] [where petitioner 44 suffered traumatic injury and continuous hospitalization as a result of the accident, although police report was found not to provide adequate notice, late petition still allowed in the absence of prejudice]; Matter of DeMolfetto v. City of New York, 216 A.D.2d 295, 296 [2d Dept. 1995] [where petitioner suffered serious head injury and underwent a lengthy rehabilitation, while police report did not furnish respondent with prompt notice of facts of claim, late notice nonetheless allowed in the absence of prejudice]). Assigning the proper burden of showing prejudice in a GML § 50-e[5] petition has been the subject of imprecision. Applying prior precedent, it is evident that the burden of overcoming prejudice in this case has been more than sufficiently overcome. It is not disputed that Austin was and remains incapacitated, unable to verbalize and unable to perform the daily functions of living, let alone preserve his legal rights. Nonetheless, the record contains significant evidence, including the certified police photographs, demonstrating that Respondent is not prejudiced in its defense. Conversely, the record is completely devoid of any admissible evidence showing how the Respondent is “substantially,” (R. at 85), prejudiced as the Second Department held, or how Respondent is prejudiced in any way at all. Special Term alluded to the correct standard by stating that “[t]he burden is on the respondent, not the petitioner” to demonstrate prejudice by the delayed filing. (R. at 7). The Second Department erred by saddling the incapacitated minor Austin with a higher burden 45 regarding prejudice. As a result, the Second Department improperly ignored the evidence and found that Austin did not meet the burden imposed. The Second Department not only failed to consider the record but also failed to recognize the relationship between a petitioner’s incapacitation and the proper amount of evidence required to overcome prejudice. In Prude v. County of Erie, (47 A.D.2d 111, 112-113 [4th Dept. 1975]), the Fourth Department applied the proper statutory allocation between showing mental incapacity and prejudice. The Fourth Department held that “[w]here the likelihood of prejudice is great, the proof of mental incapacity must be strong to overcome the statutory shield and vice versa.” (Id., citing Matter of Driskell v. City of New York, 31 A.D.2d 541 [2d Dept. 1968]). The Newcombs respectfully submit that this spectrum should be applied to the incapacitated Austin’s petition. The opposite standard brings about the unjust and potentially unconstitutional result of imposing a legal burden on an incapacitated person who is physically and mentally incapable of taking legal action. (See Grubaugh v. City of St. Johns, 384 Mich. 165, 169-177 [1970]). The Third Department’s decision in Matter of Hayes v. Del.-Chenango- Madison-Otsego Bd. of Coop. Educ. Servs., (79 A.D.3d 1405 [3d Dept. 2010]), is on point with the case at bar in dealing with the relationship between incapacitation and prejudice. Just as with this case, Hayes involved a petitioner who was hospitalized, 46 underwent surgery, received physical therapy because of the accident and thereafter remained disabled. The Third Department affirmed the Supreme Court’s granting of the late notice six months after the expiration of the statutory period (one month longer than the case at bar). The Third Department in Hayes found that “respondents provided no particulars regarding the manner in which they were prejudiced by the delay...” (Id. at 1405-06). In fact, in cases involving incapacitation resulting from the negligence in question, the Second Department has itself repeatedly found that the public corporation did not make a sufficient showing of prejudice. (See, e.g., Matter of Haeg, 30 A.D.3d at 520 [in case involving traumatic injury and continuous hospitalization as a result of the accident, late notice allowed because “the County has failed to demonstrate how it was prejudiced by the lack of timely notice”]; Matter of DeMolfetto, 216 A.D.2d at 296 [in case involving serious head injury and lengthy rehabilitative process, late notice allowed because the respondent has failed to demonstrate how it was prejudiced by the lack of prompt notice]). Recently, in Matter of Rosa Rivera, (127 A.D.3d 445), the First Department addressed the application of GML § 50-e[5] to a similar situation as the case at bar, namely where the alleged negligence caused the petitioner brain injury and ongoing incapacitation. Consistent with Hayes, the First Department found that “[t]he City has not shown that it has suffered substantial prejudice by the delay, especially given 47 the transitory nature of the alleged defective condition.” (Id., citing In re Mercado, 100 A.D.3d 445, 446 [1st Dept. 2012]). Similar to these prior holdings, the record in this case is also devoid of any evidence showing how Respondent was prejudiced. Yet the Second Department, without due regard to the facts in the record, reached the exact opposite result as the Third Department in Hayes, the First Department in Rosa Rivera, and its own prior holdings in Haeg and DeMolfetto. In this case, the incapacitated minor petitioner has placed in the record substantial evidence showing how Respondent has not been prejudiced. This evidence includes: (i) certified police pictures taken of the accident scene immediately after the accident depicting the Sign; (ii) the police investigation and accident report, which includes witnesses; (iii) Respondent’s own placement and control of the instrumentality creating the negligence (i.e. the Sign); (iv) Respondent’s removal of its Sign from the accident scene within 90 days; (v) Raymond Newcomb’s report about the accident within 90 days; and (vi) the fact that the design of the Intersection in no way changed between the time of the accident and the filing of the untimely notice. Respondent offered no admissible evidence to contradict the Newcombs’ showing. If the wealth of evidence in the record in this case does not dispense with prejudice as a matter of law, then prejudice under GML § 50-e[5] can be found on any record, no matter its quality and depth. 48 The evidence the Newcombs proffered is more than ample to ameliorate any contention of prejudice precisely because such evidence enables Respondent to conduct a full and complete investigation of every facet of the claim. (See, e.g., Rosario v. New York City Health and Hospitals Corporation, 119 A.D.3d 490, 490 [1st Dept. 2014] [“Defendant is not substantially prejudiced by the delay since the operative facts of the claim are contained in the records, and the case will turn primarily on those records, rather than on witnesses’ memories.”]) Significantly, the evidence establishing lack of prejudice, such as the police pictures and lack of design change at the Intersection, also serves to satisfy GML § 50-e[5]’s plain language that Respondent was equipped with actual knowledge within a “reasonable time” after the 90-day period. (See Monge v. City of New York, 95 A.D.2d 848, 848 [2d Dept. 1983] [reversing Supreme Court’s denial of late notice of claim and holding that five months beyond 90-day period was within a reasonable time]; Beatty v. County of Saratoga, 74 A.D.2d 662, 663 [3d Dept. 1980] [nature of claim made known within a reasonable time because it was not contended that any subsequent change in highway condition would hinder investigation or defense]). A. The Police Pictures of the Accident Scene Constitute Clear Evidence which as a Matter of Law, Removes any Prejudice Inexplicably, both Special Term and the Second Department have evaluated the Newcombs’ petition as if the police pictures of the accident scene simply do not 49 exist. This glaring omission constitutes a sharp departure from Williams’ mandate to consider all factors present in a petition. (See 6 N.Y.3d at 538). The contemporaneously taken police pictures of the accident scene are the single most important piece of evidence any defendant in Respondent’s position can hope to have in this type of accident investigation. After service of the police pictures in November 2013, Respondent was placed in just as good a position to investigate the claim as it would have been if a timely notice of claim had been possible. Such is the case because the content of the police pictures did not change and they contain all pertinent information underpinning the Newcombs’ claim against the Respondent, (i.e. the size, location, color, shape, and position of the Sign at the Intersection). In fact, because the pictures depict the scene in graphic detail, Respondent was provided with more information concerning the claim in November 2013 than it would have had if a written notice alone had been provided within 90 days following Austin’s accident. (See Rechenberger, 112 A.D.2d at 153 [late notice allowed where “the information which would have been available to the [Respondent] with regard to the essential facts of the claim would have been substantially the same, if not the same, as that which is now available”]; Matter of Abbate v. City of New York, 49 Misc. 3d 1207(A) at *8 [Sup. Ct. Kings Cty. October 5, 2015] [“The nature of the allegation...is such that the respondents would have 50 been unable to investigate any further even if the notice of claim was served within the prescribed statutory period.”]) Revealing is that neither Respondent’s Supreme Court opposition nor its Second Department brief offer any refutation of the fact that the police pictures remove any potential prejudice. The importance of the information contained in the police pictures is evidenced by how Respondent has used such pictures in both the Supreme Court and the Second Department to mount an extensive, and erroneous, attack on the merits. (R. at 65-66; Resp. 2d Br. at 21-24). Paradoxically, the Respondent was found to be substantially prejudiced in defending against the claim after relying on the pictures to make a factual defense appropriate for a jury as the centerpiece argument concerning why the GML § 50-e[5] petition should not be granted. As a matter of law, a public corporation cannot be found to be substantially prejudiced from defending on the merits while simultaneously arguing the factual lack of merit of the petitioners’ claim at length. Notably, these types of investigative pictures of an accident scene have been used in a multitude of GML § 50-e[5] petitions across the Judicial Departments, including the Second Department, and have been found to ameliorate any prejudice alleged to have befallen a public corporation because of late notice. (See, e.g., Sosa, 124 A.D.3d at 515 [“any alleged prejudice is undermined by the police department’s contemporaneous investigation, which included interviewing witnesses and taking 51 photographs of the location as it existed at the time of the accident”]; In re Hubbard, 71 A.D.3d 1313, 1315-16 [3d Dept. 2010] [no prejudice where “the Sheriff's Department took numerous photographs of the accident scene shortly after the collision occurred”]; Matter of Mounsey v. City of N.Y., 68 A.D.3d 998, 999 [2d Dept. 2009] [photographs taken of defective condition within 90 days following accident found to eliminate prejudice]; Caridi v. New York Convention Center Operating Corp., 47 A.D.3d 526, 526 [1st Dept. 2008] [any prejudice undermined because of State Police’s investigation including “photographs of the location as it existed at the time of the accident”]; Ruffino v. City of New York, 57 A.D.3d 550, 552 [2d Dept. 2008] [photographs of scene taken the day of the accident dispensed with prejudice]; Barnes v. New York City Hous. Auth., 262 A.D.2d 46, 47 [1st Dept. 1999] [“[D]efendant fails to identify any meaningful prejudice emanating from the delayed service of the second notice of claim. This is particularly so since defendant has photographs of the location as it existed at the time of the accident”]; Lozada v. City of New York, 189 A.D.2d 726, 727 [1st Dept. 1993] [no prejudice where photographs of accident site were taken]; Rivera, 169 A.D.2d at 389 [“The photographs clearly sufficed to apprise the city of the alleged negligence involved...[t]hey may be used to prove constructive notice of an alleged defect since they were taken reasonably close to the time of the accident.”] [internal quotations omitted]) Courts around the state continually adhere to the premise that accident 52 scene photos taken shortly after an accident overcome claims of prejudice. (See, e.g., Rosario-Bencosme v. City of New York, 2013 N.Y. Slip Op. 32821(U) at *6 [Sup. Ct. N.Y. Cty. November 1, 2013] [photographs existing at or near time of the accident prevented public corporation from being prejudiced]). Despite this abundance of precedent, the Second Department afforded no legal weight to these pictures worth mentioning. Yet, consistent with the above- mentioned precedent, it is beyond cavil that the certified police pictures of the scene depicting the Sign as it existed at the time of the accident eliminate any prejudice because they were taken by an independent and authoritative investigating body (the Suffolk County Police Department) for purposes of a criminal prosecution by Suffolk County, immediately after the accident occurred. (R. at 25-29; 68-69). The Second Department’s divergence from the other Judicial Departments and its own past holdings is a clear abuse of discretion because the current holding signifies that even the most accurate and compelling police photographs, originating from an independent investigatory body, taken contemporaneously at the scene, and revealing all pertinent facts upon which a petitioner’s claim rests, are inadequate to overcome unsupported claims of prejudice. Adhering to the prior precedent concerning the importance of police pictures is crucial in order to safeguard an injured person’s legally meaningful opportunity to satisfy GML § 50-e[5], and 53 preserve the proper legal consideration of critical independent evidence depicting an accident scene. B. The Second Department’s Finding of Prejudice is in Error Because Prejudice under GML § 50-e[5] Cannot be Shown by Inadmissible Evidence and Speculation by the Court of Presumed Facts Dehors the Record Special Term based its finding of prejudice on an unsupported assumption that certain factors “presumably” interfered with Respondent’s ability to investigate the claim. (R. at 7). Stated simply, Special Term created these factors upon which it based its decision out of “whole cloth.” (Id.) These factors included Special Term’s speculation concerning supposed personnel changes and matriculation of students. (Id.) No evidence whatsoever was submitted in the record to support this rationale, nor had Respondent itself even argued these factors. (Id. at 64, ¶ 15). The Second Department continued this line of speculation, adopting Special Term’s faulty reasoning, and basing its decision on unsupported assumptions rather than on any facts in the record. (R. at 85). This holding is likewise in error because Respondent’s opposition to the petition contains no admissible evidence whatsoever of how Respondent was prejudiced by the late notice. (Id. at 59-69). As the Newcombs argued in the Appellate Division (App. 2d Br. at 28), the record contains no party affidavits, third-party affidavits, or any other documents evidencing how Middle Country is prejudiced by the late petition. (R. at 59-69). Respondent’s only argument concerning prejudice is contained in its opposition where it is fleetingly 54 referenced in a single, conclusory paragraph in an affirmation of counsel who lacked personal knowledge of the facts and is not supported by any form of evidence. (R. at 64, ¶ 15). In sum, an affirmation of counsel without personal knowledge, and the general unsupported claim of prejudice are insufficient as a matter of law to establish prejudice. (See, e.g., Matter of Bonaguro v. City of New York, 2013 N.Y. Slip Op. 33826(U) at *3-4 [Sup. Ct. Kings Cty. October 1, 2013] [“other than vague, general assertions, there is nothing concrete establishing any prejudice”]; Phillipe v. City of New York, 8 Misc. 3d 1016(A) at *3 [Sup. Ct. N.Y. Cty. April 8, 2005] [rejecting a finding of prejudice where city’s opposition “speculatively” claimed its investigation was hampered yet failed to attach an affidavit from any investigator who may have been hindered by the late notice of claim]). Austin, who has had the balance of his life impacted by this accident, cannot have his claim disposed of based on a court’s guesswork. Special Term’s error is underscored by its statement that [t]he petitioner again misapprehends the nature of the requisite showing of prejudice. Petitioner focuses on the school district’s exclusive knowledge about the subject sign, rather than the effect of the five month delay on the school district’s ability to investigate the merits of the claim about the placement of the sign while information is likely to be available. (R. at 7). Special Term failed to consider that Respondent’s “exclusive knowledge” concerning the Sign has a significant bearing on the prejudice determination because 55 such knowledge places Respondent in the best position to know the details concerning its own Sign. (See Nosewory, 298 N.Y. at 80-81); see also Robles v. New York City Housing Authority, 2014 N.Y. Slip Op. 31088(U) at *7 [Sup. Ct. Bronx Cty. March 13, 2014] [in determining whether public corporation had opportunity to evaluate claim, no prejudice where municipal defendant was able to view the actions performed to its own property and its own internal records “with a modicum of effort”] [internal quotations omitted]). Furthermore, a public corporation who remedies its negligent condition within 90 days (in this case by removing the negligently placed Sign) cannot be found to be prejudiced by a late notice. (See Matter of Battle, 261 A.D.2d at 615). Equitable estoppel also bars Respondent’s statutory prejudice defense because Respondent’s own action created the need for the filing of the late petition. (See Cassidy v. County of Nassau, 84 A.D.2d 742, 743 [2d Dept. 1981]). Further still, there exists no facts in the record that show the short, reasonably excused delay had any negative impact on Respondent’s ability to investigate the claim. In fact, the Second Department has itself previously found inadequate the very basis of the presumed prejudice that Special Term speculated existed in this case. In Andrew T.B. v. Brewster Cent. Sch. Dist., (18 A.D.3d 745 [2d Dept. 2005]), the Second Department held that “[t]he [public corporation’s] proof, in opposition, regarding the retirement or cessation of employment of certain staff did not 56 demonstrate ‘substantia[l] prejudice.’” (18 A.D.3d at 748, quoting GML § 50-e[5]; see also Matter of Kurz v. New York City Health and Hosps. Corp., 174 A.D.2d 671, 673 [2d Dept. 1991] [“The [public corporation] should thus not be heard to complain of prejudice based upon its purely speculative argument that employees with knowledge of the facts may no longer work at the [public corporation].”) Here, there was no opposition from the public corporation regarding employee status placed in the record, only Special Term’s conjecture. Thus, the case at bar provides a far more compelling set of facts militating against a finding of prejudice. It is beyond dispute that the Second Department and Special Term inferred prejudice by relying on factors that the Judicial Departments, including the Second Department, have consistently found to be legally insufficient. The showing of prejudice by way of an affirmation of counsel lacking first-hand knowledge of the facts has consistently been found to be a legally inadequate avenue to demonstrate prejudice. (See Gibbs, 22 A.D.3d at 720 [conclusory assertions made solely by attorney insufficient to establish prejudice]; Medley v. Cichon, 305 A.D.2d 643, 645 [2d Dept. 2003] [conclusory assertions of public corporation’s counsel regarding unnamed employees or agents leaving employ or suffering memory loss found insufficient to refute petitioner’s showing of no prejudice]). Furthermore, the record is completely devoid of any evidence whatsoever that would support a finding of prejudice. (See Matter of Apgar v. Waverly Cent. School Dist., 36 A.D.3d 1113, 57 1115 [3d Dept. 2007] [no prejudice where public corporation “failed to come forward with specific evidence demonstrating any impairment to its ability to conduct a defense as a result of the delay”]; Matter of Welch v. Board of Educ. of Saratoga Cent. School Dist., 287 A.D.2d 761, 764 [3d Dept. 2001] [reversing Supreme Court’s denial of the infant claimant’s petition and finding that “the record is devoid of evidence, such as affidavits from those [allegedly unavailable] individuals, to support the claim that memories of potential witnesses have faded so much that respondent’s ability to maintain a defense has been unduly undermined”]). The mere passage of time between the accident and the public corporation’s acquisition of notice has also consistently been found legally deficient for a showing of prejudice. (See Kellman v. Hauppauge Union Free Sch. Dist., 120 A.D.3d 634, 636-637 [2d Dept. 2014] [municipality’s conclusory and unsupported contentions regarding prejudice due to passage of time found inadequate]; In re Lopez, 103 A.D.3d 567, 568 [1st Dept. 2013] [“conclusory assertions of prejudice, based solely on the delay in serving the notice of claim, are insufficient”]; Matter of Schwindt v. County of Essex, 60 A.D.3d 1248, 1249-50 [3d Dept. 2009] [conclusory assertions of prejudice based upon “mere passage of time” found “unpersuasive”], citing Leeds, 55 A.D.3d at 736 [2d Dept. 2008] [“conclusory assertion that [Respondent] will be unable to investigate the petitioners’ claim due to the passage of time was insufficient to overcome the petitioners’ showing of a lack of substantial prejudice”]; 58 see also Jordan v. City of New York, 41 A.D.3d 658, 659-660 [2d Dept. 2007] [city’s conclusory assertions of prejudice, based solely on delay in filing the notice of claim, found insufficient]). Despite this unambiguous precedent, it is precisely such legally deficient evidence upon which the Second Department’s finding of prejudice rests. The Second Department’s holding contradicts its own prior precedent established in Rojas v. HHC. (127 A.D.3d 870). Rojas was decided a mere month before the case at bar. Like this case, Rojas also involved a petitioner with a “reasonable excuse” for not filing a timely claim. The Second Department allowed the late petition, holding that: [t]he Supreme Court correctly determined that HHC was not substantially prejudiced by the delay in receiving notice of the claim because the six-month delay, which was caused by HHC, was relatively short, and HHC did not specifically claim that any of its witnesses had become unavailable or that memories had faded prior to the service of the notice of claim (see Gibbs v City of New York, 22 A.D.3d 717, 719-720; Matter of Welch v Bd. of Educ., 287 A.D.2d 761, 764). (127 A.D.3d at 874). These are precisely the same set of circumstances that the Second Department found did not warrant granting the late notice of the petition in this case. In fact, the case at bar is even more compelling than Rojas because: (i) only five months passed after the expiration of the statutory deadline; (ii) the Respondent created and removed the negligent condition; (iii) a criminal investigation prevented timely discovery of the only evidence demonstrating 59 Respondent’s involvement; (iv) police photos of the scene were taken at the time of the accident; and (v) the petitioner is a severely incapacitated minor. Notably, in deciding Rojas, the Second Department cited Gibbs, a case relied on extensively by Appellants in both the Supreme Court and the Second Department. Inexplicably, the Second Department decided the case at bar with no recognition of its holding in Rojas or adherence to its own precedent in Gibbs. These omissions are the hallmark of an arbitrary decision that constitutes an improvident exercise of discretion. POINT III PETITIONERS-APPELLANTS’ “REASONABLE EXCUSE” FOR THE SHORT DELAY IN FILING BASED UPON INCAPACITATION DUE TO THE ACCIDENT AND THE UNAVAILABILITY OF CRUCIAL EVIDENCE BECAUSE OF A CRIMINAL INVESTIGATION, WARRANTS THE PETITION BE GRANTED This Court has made clear that: [i]ncompetent persons become the wards of the court, upon which a duty devolves of protection both on their persons and property. This duty is not limited to cases only in which a committee has been appointed, but it extends to all cases where the fact of incompetency exists; and if the contention of the [incompetent party’s] counsel with reference to his condition is true, a case was presented in which the duty of protection of the defendant’s interest devolved upon the trial court. (Wurster v. Armfield, 175 N.Y. 256, 262 [1903]; see Sengstack v. Sengstack, 4 N.Y.2d 502, 509 [1958]; Prude, 47 A.D.2d at 113). The well-established, vital common law equitable obligation to protect infants and impaired persons has been 60 codified in numerous statutes that articulate the obligation of the New York State Courts to seek that which is in the best interests of the infant/impaired person. (See, e.g., CPLR Art. 12: Infants, Incompetents and Conservatees; N.Y. Mental Hygiene Law [MHL] Art. 81: Proceedings to appoint a Guardian for Personal Needs or Property Management; Uniform Rules for the New York State Trial Courts [UCR] 202.67: Infants and Incapacitated Persons’ Claims and Proceedings; N.Y. Estates, Powers & Trusts Law [EPTL] [Trusts] Art. 7: Uniform Transfers to Minors Act; Article 11: Fiduciaries Powers, Duties and Limitations at 11-1.1: Investments by Fiduciaries at 11-2.3: Prudent Investor Act]). Because GML § 50-e[5] does not contain an automatic imbedded toll of the 90-day period based on a petitioner’s incapacitation, properly considering the circumstances surrounding the incapacitation is crucial so as to honor the mandates of protecting the incapacitated person’s rights and fulfilling the notice statute’s legislative purpose. The holdings of both the Second Department and Special Term relating to a physically and mentally incapacitated minor place this application of GML § 50-e in contradiction with this Court’s longstanding mandate regarding the duty that courts owe to such incapacitated persons. The Second Department’s denial of the incapacitated minor’s GML § 50-e[5] petition is unprecedented because any one of the factors constituting the “reasonable excuse” found by Special Term ought to have been enough to grant the petition in 61 accordance with the statutory intent. Many petitions have been granted even in the absence of a “reasonable excuse” for the delayed filing. (See, e.g., Matter of Regan v. City of New York, 131 A.D.3d 1064, 1066 [2d Dept. 2015] [late notice permitted despite finding that proffered excuses were found not be reasonable]). Yet, the minor Austin’s incapacitation, caused by the accident, and the unavailability of crime scene evidence were both construed to work against him such that there was no legally meaningful way the statute could have been satisfied. The Second Department was clearly in error by failing to afford any consideration to Austin’s incapacitation. (R. at 84-85). A petitioner’s incapacitation should be an important consideration in Williams’ “mix” of circumstances. (See, e.g., Hubbard, 71 A.D.3d at 1315 [late notice allowed where petitioner “remains nonverbal and requires constant care for the profound physical and mental disabilities sustained because of the accident”]). This is so because the law in the State has consistently been that [w]here a person lacks the ability and capacity due to mental affliction, whether of a chronic or a temporary nature, to pursue his lawful rights he should be relieved from the statutorily imposed strict time limitations. (Prude, 47 A.D.2d at 113, citing Matter of Hurd v. County of Allegany, 39 A.D.2d 499, 502-503 [4th Dept. 1972]). At bar, Austin’s particular incapacitation has a crucial bearing on the GML § 50-e[5] determination because the incapacitation: i) completely hindered Austin’s ability to physically and mentally function; ii) was 62 allegedly caused by Respondent’s negligence; and iii) lasted during the entire statutory period, continuing until this day. Notably, this is not a case where the petitioner’s incapacitation ceased after some time and the petition was denied because there was no reasonable excuse for the period between when the incapacitation ended and the late notice was filed. (Compare Matter of Gillum v. County of Nassau, 284 A.D.2d 533, 533 [2d Dept. 2001] [no reasonable excuse for the delay in filing after incapacitated petitioner retained counsel] with, Stuto v. City of New York, 192 Misc. 935, 936 [1948] [late notice allowed where petitioner’s incapacitation lasted during entire statutory period]). Rather, Austin’s incapacitation was coupled with still other factors that made timely filing literally impossible, such as the criminal investigation preventing disclosure of the accident scene photos – the only evidence of Respondent’s involvement – and Respondent’s removal of the Sign. Prior to its current holding, the Second Department had consistently afforded great weight to severe incapacitation in allowing a late notice. (See Lopez v. County of Nassau, 120 A.D.3d 688, 689 [2d Dept. 2014]; Matter of Haeg, 30 A.D.3d at 520 [petition allowed where “[a]s a result of the accident, petitioner sustained traumatic injuries which required surgery and continuous hospitalization for medical care and rehabilitation”]; DeMolfetto, 216 A.D.2d at 296 [Supreme Court found to have improvidently exercised its discretion in denying petition where “[t]he record 63 demonstrates that the petitioner sustained serious head injuries as a result of the accident which required surgery and a lengthy rehabilitative process”]; Savelli v. New York, 122 A.D.2d 55, 56 [2d Dept. 1986]; Driskell, 31 A.D.2d at 541). Even prior to the 1976 statutory amendments, a period where the courts had less discretion to allow a late notice and the statute was more narrowly construed, incapacitation was nonetheless a factor given significant weight. (See, e.g., Stuto, 192 Misc. at 936 [petitioner’s incapacitation during entire notice period sufficient to warrant an extension]). Despite this precedent, the Second Department did not consider Austin’s incapacitation. At bar, the exigent circumstances of Austin’s condition rendered it impossible for him to file a timely notice of claim. Austin, to this day, cannot verbalize and remains unable to serve as a source of information about the accident scene or potential tortfeasors. Yet, the Second Department did not afford this incapacitation any legal weight in rendering its decision, opting instead to find prejudice despite an absence of evidence demonstrating same in the record. Individuals unable to protect their legal rights cannot, as a matter of law, have GML § 50-e serve as a strict bar to deprive them of a claim because their very incapacities, caused by a public corporation, constitute the very reason statutory relief is needed. This Court can look to the dissent in Grubaugh v. City of St. Johns, (384 Mich. 165), to ascertain how the Second Department’s failure to consider Austin’s 64 incapacitation amounts to an arbitrary application of GML § 50-e[5]. Grubaugh addressed substantially similar facts as this case, specifically, an incapacitated minor whose injuries were caused by the alleged negligence of the public corporation defendant. The Grubaugh dissent (Brennan, C.J.), quoting from the lower court’s reference to American Jurisprudence, Volume 38, Section 703, page 406, observed that: ‘[i]n some states it is held that a person injured does not lose his right of action by failing to give notice during the statutory period when he was physically or mentally incapacitated from giving it, on the ground that the law does not seek to compel a man to do that which he cannot possible (sic) perform, especially when the failure to give the notice within the required time grows out of the very act of negligence which makes the municipal corporation liable, and particularly where the incapacity is caused by the same negligence of the municipal corporation out of which the injury arose. There is considerable authority to the effect that so to construe statutory provisions of the character under consideration as to make them apply to persons who are mentally and physically incapable of giving the required notice within the period specified would render the statutes unconstitutional, as depriving such persons of due process of law.’ (Grubaugh, 384 Mich. at 179-180). However, the dissent in Grubaugh believed that the case need not be decided on constitutional grounds because a rule that negligently caused incapacity resulting in the inability to give notice constitutes a valid excuse 65 for not giving timely notice and therefore would provide the necessary safeguards. The dissent noted: [i]f, under former practice, a bill in equity would have been a proper means to enjoin the defendant from claiming as a defense that timely notice was not given then it should be permissible to allege and show the same factual basis [of incapacity] for failure to give notice under modern practice as an appropriate reply to the defense [of untimely notice]. (Grubaugh, 384 Mich. at 183 [internal references omitted]). The dissent’s procedural analysis regarding how notice statutes should be applied to incapacitated petitioners provides the legal underpinning as to why statutes such as GML § 50- e[5], with their multi-prong factor analysis, pass constitutional scrutiny. The Grubaugh dissent’s focus on how applying equity avoids constitutional infirmity explains precisely why when a “reasonable excuse” based on incapacity caused by the negligence in question is present, a court’s discretion should be exercised in favor of granting the petition. A. The 90-day Time Limitation Should not Have Begun to Run Against the Incapacitated Infant During the Time When he Could not Have Known of Respondent’s Negligence Special Term’s affirmed finding was that “no one, including the petitioner, had actual knowledge of essential facts underlying a legal theory or theories against the school district until the scene photographs became available in November of 2013, many months after the accident…” (R. at 7). First, Special Term’s statement 66 is incorrect because there was only one party who was in a position to know about the Sign; specifically the Respondent who placed and removed it from the Intersection. Thus, equating the unavailability of the photographs with an absence of knowledge can apply only to the Newcombs, who first came to such knowledge only after the police pictures were made available. Nonetheless, if, arguendo, Special Term’s finding is correct, construing GML § 50-e[5] and Education Law § 3813 [2-a] to deny the petition under such circumstances creates an unjust legal contradiction because the 90-day time limit for Austin to file a claim was already running during a time when he did not, and could not, have any knowledge that he had any legal rights against Respondent. This incongruity perpetrates a substantial injustice and is precisely the consequence the legislature intended to avoid by amendment to GML § 50-e. The rule established by the Fourth Department in Sexstone v. City of Rochester, (32 A.D.2d 737, 737 [4th Dept. 1969]), that “[t]he filing of the notice of claim was timely under the General Municipal Law §§ 50-e and 50-i, as it was within 90 days after the [public corporation’s] violations were discovered” is applicable to the case at bar. Furthermore, “[t]here is precedent supporting [the] position that the requirements of General Municipal Law § 50-e were tolled until [a petitioner] discovered that [he or she] was injured by [Respondent’s] actions.” (Memorial Hosp. v. McGreevey, 152 Misc.2d 127, 130 [1991], citing Distel v. County of Ulster, 107 A.D.2d 994 [3d Dept. 1985]; Cassidy, 67 84 A.D.2d at 742; Cacucciolo v. City of New York, 127 Misc.2d 513 [1985]; Damico v. Onondaga County Water Auth., 36 Misc.2d 158 [1962]). There is no doubt that pursuant to CPLR 208, the severely incapacitated petitioner Austin (who was also a minor) has the benefit of a toll of his underlying substantive negligence claim against the Respondent. (See McCarthy v. Volkswagen of Am., Inc., 55 N.Y.2d 543, 548 [1982] [CPLR 208 tolls the statute of limitations when an individual is unable protect his or her own legal rights because of an overall inability to function]). In contrast, the notice statutes contain no automatic toll for incapacity or infancy, relying instead on a court to make a sound application of the statutory factors. The Second Department’s failure to consider the impact of Austin’s total incapacitation creates a paradox in attempting to reconcile the purposes of GML § 50-e and CPLR 208. On the one hand, the incapacitated minor petitioner is clearly afforded more time to file the underlying lawsuit because of his incapacitation, yet this incapacitation was of no consequence in affording more time to satisfy a condition precedent to filing such suit. In cases where the GML § 50-e[5] mix involves incapacitation, the notice statute and CPLR 208 should be interpreted in pari materia because they have a common purpose for comparable circumstances regarding incapacity. The Respondent bears the heavy burden of showing that 68 despite the complete incapacitation during the statutory period, a liberal construction of the remedial notice statute does not allow for the petition’s grant. POINT IV CONSTRUING GML § 50-e TO PROVIDE A PUBLIC CORPORATION RESPONDENT WITH A STATUTORY WINDFALL RESULTING FROM AN INCAPACITATION ALLEGEDLY CAUSED BY THE RESPONDENT, A CRIME BEING COMMITTED, AND ITS OWN REMEDIATION OF NEGLIGENCE PRIOR TO 90 DAYS FOLLOWING AN ACCIDENT, VIOLATES PUBLIC POLICY Both the Second Department and Special Term’s decisions penalize the petitioner: (i) because of his incapacitation, allegedly caused by Respondent; (ii) because the information providing notice of the Respondent’s involvement in the accident was not made available until after a criminal investigation concluded; and (iii) because the evidence demonstrating the negligence was removed by Respondent prior to the expiration of the statutory period. Clearly, all three of these circumstances were beyond the Appellants’ control and should not be permitted to combine and deny Austin justice. No statute should be construed in such a way that a person or entity receives a benefit because of illicit and negligent conduct. It cannot be the case that Austin would have been in a better position to receive statutory relief had he not been the victim of a crime and not so severely incapacitated as a result of the accident. The notice statutes were intended to achieve the exact opposite purpose. 69 Construing GML § 50-e[5] to deprive Austin of an opportunity to bring suit has substantial negative public policy implications. First, following the Second Department’s holding, victims of crimes will be disinclined to file criminal complaints because the resulting criminal investigation could conceal evidence identifying a municipal tortfeasor and render it unavailable. The time it takes for the criminal process to conclude would be held against the victim to defeat a tort claim on GML § 50-e grounds. Second, the Respondent in this case has been rewarded because the injuries to the petitioner rendered him incapacitated and unable to verbalize. This promotes a result wherein the more severe an injury the negligence causes, the more likely the public corporation is to escape liability on GML § 50-e grounds. Finally, this case reveals the public policy concerns raised by failing to follow Battle. Adhering to the holding of Battle is vital to balancing the public interest of timely remedying negligent conditions with the consequence that such remedial actions may result in a plaintiff being unable to timely satisfy GML § 50- e. Battle provided the equitable result – encouraging the prevention of accidents while providing claimants with a means of showing notice. Failing to follow Battle promotes a policy that rewards concealment. 70 CONCLUSION It is respectfully submitted that the denial of the incapacitated minor’s petition for leave to file a late notice of claim nunc pro tunc was an improvident exercise of the lower courts’ discretion and in light of the facts of the record, the weight of legal precedent, and in the interest of justice, the petition should be granted. Dated: Mineola, New York December 14, 2015 Respectfully submitted, LAW OFFICES OF PAUL A. MONTUORI, P.C. By: ___________________________________ Paul A. Montuori Attorneys for Petitioners-Appellants 246 Mineola Blvd., Suite 109 Mineola, New York 11501 (516) 338-4714