In the Matter of Raymond Newcomb et al., Appellants,v.Middle Country Central School District, Respondent.BriefN.Y.November 15, 2016APL-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. >> >> REPLY 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: March 23, 2016 To Be Argued By: Paul A. Montuori Time Requested: 30 Minutes i TABLE OF CONTENTS TABLE OF CONTENTS…………………………………………………………...i TABLE OF AUTHORITIES………………………………………………………iv SUMMARY OF REPLY…………………………………………………………...1 ARGUMENT……………………………………………………………………….5 POINT I RESPONDENT FAILS TO RECOGNIZE THAT ITS OWN ACTIONS ESTABLISH ACTUAL KNOWLEDGE AS A MATTER OF LAW……………………………………………………………...5 A. Respondent Ignores the Fact that its Placement of the Sign at the Intersection Supplied the Required Actual Knowledge………………………………………8 B. Respondent’s Violations of the Town of Brookhaven Code Provisions Relating to Permissible Sign Placement Demonstrates its Actual Knowledge of the Negligence Claim……………………………………………………………..13 C. The Removal of the Sign within 90 Days Following Austin’s Accident Provided Respondent with Actual Knowledge of the Essential Facts Comprising the Claim……………………17 D. Petitioner Raymond Newcomb’s Report of the Specifics of His Son Austin’s Accident to one of Respondent’s Schools Provides an Additional Source of the Required Actual Knowledge………………………22 ii E. The Rule Set Forth in Amabile v. City of Buffalo Confirms Respondent’s Actual Knowledge in this Case…………………………………………………………25 POINT II SUBSTANTIAL PREJUDICE IS ABSENT BECAUSE THE RESPONDENT HAS NOT REFUTED THE INCAPACITATED MINOR’S SHOWING THAT RESPONDENT IS IN NO WAY HINDERED IN INVESTIGATING THE MERITS OF THE CLAIM……………30 A. The Police Pictures Dispense With any Prejudice………………..39 POINT III THE LOWER COURTS ERRED IN DENYING THE PETITION BECAUSE THE TOTALITY OF THE CIRCUMSTANCES RENDERED IT IMPOSSIBLE FOR THE INCAPACITATED MINOR TO COMPLY WITH THE STATUTORY REQUIREMENTS…………42 POINT IV RESPONDENT’S ARGUMENTS CONCERNING THE MERITS OF THE CLAIM ARE LEGALLY MISPLACED, NOT IN ACCORDANCE WITH THE ACTUAL FACTS, AND REVEAL THAT RESPONDENT HAS EXPERIENCED NO SUBSTANTIAL PREJDUICE……………………………………………………49 CONCLUSION…………………………………………………………………...54 iii APPENDIX Code Sheet, DMV Police Accident Form MV-104A (6/04) available at New York State Department of Motor Vehicle Website, http://dmv.ny.gov/forms/P33Part07.pdf, pp. 30-35 (last visited March, 22, 2016)……………………………………………A-1 Lawrence M. Nessenson, Note, “N.Y. General Municipal Law Section 50-e(5):Ameliorating New York’s Notice of Claim Requirements, 12 Fordham Urban Law Journal, Issue 3, Article 6, 563 [1983])……………………………………………………A-7 Town of Brookhaven Code §§ 11[a]-[d]……………………………………………………………...A-36 iv TABLE OF AUTHORITIES Cases Amabile v. City of Buff., 93 N.Y.2d 471 [1999]…………………………………………………passim Ayala v. City of New York, 189 A.D.2d 632 [1st Dept. 1993].………………………………………..9, 13 Barnes v. New York City Hous. Auth., 262 A.D.2d 46 [1st Dept. 1999].………………………………………........40 Beary v. City of Rye, 44 N.Y.2d 398 [1978]……………………………………………………….2 Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662 [1976]……………………………………………………...22 Bennett v. N.Y. City Tr. Auth., 4 A.D.3d 265 [1st Dept. 2004], aff’d 3 N.Y.3d 745 [2004] …………………………………………………14 Brown v. City of New York 95 N.Y.2d 389 [2000]…………………………………………………..15-16 Bureau v. Newcomb Cent. School Dist., 74 A.D.2d 133 [3rd Dept. 1980]……………………………………….........36 Camacho v. City of New York, 187 A.D.2d 262 [1st Dept. 1992].……………………………………………1 Camarella v. East Irondequoit Cent. School Bd., 34 N.Y.2d 139 [1974]……………………………………………………….2 Caminero v. New York City Health & Hosps. Corp., 21 A.D.3d 330 [1st Dept. 2005]…………………………………………….38 Catherine G. v. County of Essex, 3 N.Y.3d 175 [2004] ………………………………………………………51 Cicio v. City of New York, 98 A.D.2d 38 [2d Dept. 1983]………………………………………….24-25 v City of New York v. State of New York, 27 Misc.3d 1207(A) [N.Y. Ct. of Cl. December 23, 2009]………….8, 27, 50 Clark v. Roswell Park Cancer Inst. Corp., 92 A.D. 3d 1273 [4th Dept. 2012]…………………………………………...13 Claud v. West Babylon Union Free School District, 110 A.D.3d 663 [2d Dept. 2013]….……………………………………….....5 Cohen v. Pearl River U.F.S.D., 51 N.Y.2d 256 [1980]………………………………………………………46 Erichson v. City of Poughkeepsie Pol. Dept., 66 A.D.3d 820 [2d Dept. 2009]…………………………………………….13 Felice v. Eastport/Southport Manor C.S.D., 50 A.D.3d 138 [2d Dept. 2008]…………………………………………...5-6 Gerzel v. City of New York, 117 A.D.2d 549 [1st Dept. 1986]……………………………………….31, 39 Gibbs v. City of New York, 22 A.D.3d 717 [2d Dept. 2005]……………………………………...9-10, 13 Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555 [1993]………………………………………………………7 Griffen v. Manice, 166 N.Y. 188 [1901]……………………………………………………41-42 Grubaugh v.City of St. Johns, 384 Mich. 165 [1970]………………………………………………22, 37, 44 Hamm v. Mem’ Hosp. of Greene County, 99 A.D.2d 638 [3d Dept. 1984]…………………………………………….49 Hunter v. North Mason High School & School Dist. No. 403, 85 Wn.2d 810 [1975]…………………………………………………...43-44 In re Hess, 15 N.Y.3d 813 [2010]…………………………………………………..52-53 vi Jenkins v. County of Westchester, 133 A.D.2d 808 [2d Dept. 1987]…………………………………………...49 Karten v. City of New York, 109 A.D.2d 126 [1st Dept. 1985]…………………………………………...39 Lein v. Czaplinski, 106 A.D.2d 723 [3rd Dept. 1984]…………………………………………...52 Martinez v. City of New York, 2008 N.Y. Slip Op. 32496(U) [Sup. Ct. N.Y. Cty. September 11, 2008]…………………………………1-2 Matter of Abbate v. City of New York, 49 Misc. 3d 1207(A) [Sup. Ct. Kings Cty. October 5, 2015]……………………………………..50 Matter of Battle v. City of New York, 261 A.D.2d 614 [2d Dept. 1999]……………………………………….18-21 Matter of Bensen v. Town of Islip, 99 A.D.2d 755 [2d Dept. 1984]………………………………………..passim Matter of Bird v. Port Byron Cent. School Dist., 231 A.D.2d 916 [4th Dept. 1996]…………………………………………...24 Matter of DeMolfetto v. City of New York, 216 A.D.2d 295 [2d Dept.1995]……………………………………………37 Matter of Devivo v. Town of Carmel, 68 A.D.3d 991 [2d Dept. 2009]…………………………………………….12 Matter of Doyle v. Elwood U.F.S.D., 39 A.D.3d 544 [2d Dept. 2007]…………………………………………….12 Matter of Driskell v. City of New York, 31 A.D.2d 541 [2d Dept. 1968]…………………………………………….37 Matter of Gillum v. County of Nassau, 284 A.D.2d 533 [2d Dept. 2001]…………………………………………...42 Matter of Haeg v. County of Suffolk, 30 A.D.3d 519 [2d Dept. 2006]…………………………………………….37 vii Matter of Hayes v. Del.-Chenango-Madison-Otsego Bd. of Coop. Educ. Servs., 79 A.D.3d 1405 [3d Dept. 2010]…………………………………………...37 Matter of Hurd v. County of Allegany, 39 A.D.2d 499 [4th Dept. 1972].……………………………………………42 Matter of Mitchell v. City of New York, 77 A.D.3d 754 [2d Dept. 2010]…………………………………………….11 Matter of Reisse v. County of Nassau, 141 A.D.2d 649 [2d Dept. 1988]……………………………………….49-50 Matter of Richardson v. Fiedler Roofing, 67 N.Y.2d 246 [1986]………………………………………………………26 Matter of Schiffman v. City of New York, 19 A.D.3d 206 [1st Dept. 2005].……………………………………………..1 Matter of Underwood v. N.Y. City Hous. Auth., 177 A.D.2d 698 [2d Dept. 1991]…………………………………………...32 Matter of Wemett v. County of Onondaga, 64 A.D.2d 1025 [4th Dept. 1978]…………………………………………...36 Mazzilli v. City of New York, 154 A.D.2d 355 [2d Dept. 1989]…………………………………………...16 Memorial Hosp. v. McGreevey, 152 Misc.2d 127 [1991]……………………………………………………45 Monge v. City of New York, 95 A.D.2d 848 [2d Dept. 1983]………………………………………..passim Noseworthy v. New York, 298 N.Y. 76 [1948]…………………………………………………….19, 41 O’Neil v. City of Parkersburg, 237 S.E.2d 504 [W.V. 1977]……………………………………………….44 Palazzo v. City of New York, 444 F.Supp. 1089 [E.D.N.Y. 1980]………………………………………...36 viii Perez v. New York City Health & Hosp. Corp., 81 A.D.3d 448 [1st Dept. 2011]…………………………………………….38 Phaler v. Daggett, 170 A.D.2d 750 [3d Dept. 1991]…………………………………………...53 Phillipe v. City of New York, 8 Misc. 3d 1016(A) [Sup. Ct. N.Y. Cty. April 8, 2005]……………………38 Picciano v. Nassau County. Civ. Serv. Commn., 290 A.D.2d 164 [2d Dept. 2001]………………………………………...9, 13 Prude v. County of Erie, 47 A.D.2d 111 [4th Dept. 1975].………………………………...37-38, 42-43 Rechenberger v. Nassau County Med. Center, 112 A.D.2d 150 [2d Dept. 1985]…………………………………………...39 Reich v. State Highway Dept., 386 Mich. 617 [1972]………………………………………………………43 Rivera v. City of New York, 169 A.D.2d 387 [1st Dept. 1991]…………………………………………..20 Robles v. New York City Housing Authority, 2014 N.Y. Slip Op. 31088(U) [Sup. Ct. Bronx Cty. March 13, 2014]………………………………….15-16 Rojas v. HHC, 127 A.D.3d 870 [2d Dept. 2015]…………………………………………...35 Rosenberg v. City of New York, 309 N.Y. 304 [1955]……………………………………………………….45 Sandak v. Tuxedo Union Sch. Dist., No. 3, 308 N.Y. 226 [1954]……………………………………………………….37 Savelli v. City of New York, 122 A.D.2d 55 [2d Dept. 1986]…………………………………………….43 Sears v. Southworth, 563 P.2d 192 [UT. 1977]…………………………………………………...44 ix Sergeto v. Town of Oyster Bay, 66 A.D.2d 796 [2d Dept. 1978]…………………………………...........20, 49 Sexstone v. City of Rochester, 32 A.D.2d 737 [4th Dept. 1969]…………………………………………….45 Sparrow v. Hewlett-Woodmere U.F.S.D., 110 A.D.3d 905 [2d. Dept. 2013]………………………………………11-12 Stuto v. City of New York, 192 Misc. 935 [1948]………………………………………………………43 Tafoya v. Doe, 100 N.M. 328 [App. 1983]…………………………………………………44 Trakis v. City of New York, 56 N.Y.2d 1018 [1982]…………………………………………………….45 Thill v. North Shore C.S.D., 128 A.D.3d 976 [2d Dept. 2015], lv. den. 26 N.Y.3d 914 [2015]……………………………………………...10 Turner v. Staggs, 89 Nev. 230 [1973], cert. den. 414 U.S. 1079 [1973]……………………...43 Vitali v. City of New York, 205 A.D.2d 636 [2d Dept. 1994]……………………………………….40-41 Voss v. Netherlands Ins. Co., 22 N.Y.3d 728 [2014]…………………………………………………….....7 Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531 [2006]………………………………………………….3, 5, 31 Zahra v. New York City Hous. Auth., 39 A.D.3d 351 [1st Dept. 2007]…………………………………………….14 Ziecker v. Orchard Park, 70 A.D.2d 422 [4th Dept. 1979], aff’d 51 N.Y.2d 957 [1980].…………………………………………….43-44 x Constitutional Provision and Statutes U.S. Const. 14th Amendment……………………………………………………...44 CPLR 208……………………………………………………………………...45-46 Education Law § 3813[1]…………………………………………………………25 Education Law § 3813[2-a]………………………………………………………...2 General Municipal Law § 50-e[4]……………………………………………29-30 General Municipal Law § 50-e[5]……………………………………………passim Vehicle and Traffic Law § 1142…………………………………………………..53 Vehicle and Traffic Law § 1172…………………………………………………..53 Other Authorities Code Sheet, DMV Police Accident Form MV-104A (6/04) available at New York State Department of Motor Vehicle Website http://dmv.ny.gov/forms/P33Part07.pdf (last visited March, 22, 2016)…………………………………………..27-28 Lawrence M. Nessenson, Note, “N.Y. General Municipal Law Section 50-e(5):Ameliorating New York’s Notice of Claim Requirements, 12 Fordham Urban Law Journal, Issue 3, Article 6, 563 [1983])………………………………………………………32 Town of Brookhaven Code § 57A-1[c] …………………………………………………………………13 § 57A-9[b]………………………………………………………………….13 § 57A-11[a]……………………………………………………………..28-29 § 57A-11[d]……………………………………………………………..17-18 § 57-12[c]…………………………………………………………………..13 1 SUMMARY OF REPLY The Appellate Division, Second Department construed GML § 50-e[5] in a manner that sharply departs from the statute’s legislative intent. In doing so the Second Department improvidently exercised its discretion by arbitrarily ignoring the numerous factors that support the incapacitated minor Austin’s petition. The lower courts improperly speculated and presumed, without any evidence in the record, that Respondent would be substantially prejudiced by the late filing. Discretion under GML § 50-e[5] cannot be exercised in a way that ignores the facts and circumstances as they actually exist and statutorily compels a person to do the impossible. Respondent’s conclusions are predicated upon an incorrect starting point. Respondent argues, without citation, that “[p]ermitting late notice should be the exception, not the rule.” (Dist. Br. at 69).1 Such a statement is the exact opposite of the correct standard. “[T]he statute [GML § 50-e] is remedial in nature and as such 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]). Notice Statutes are “meant to be construed to allow, when possible, a claim to be heard on its merits.” (Martinez v. City of New York, 2008 N.Y. Slip Op. 1 References to the Record are cited herein as “(R. at __).” References to Respondent Middle Country Central School District’s brief are cited herein as “(Dist. Br. at ___).” Citations to Respondent’s Second Department brief are cited herein as “(Resp. 2d Br. at___)” and included within Appellants’ Compendium of Authorities accompanying Appellants’ opening brief. The unpublished decisions cited herein are also included in Appellants’ Compendium. 2 32496(U) at *5 [Sup. Ct. N.Y. Cty. September 11, 2008]). The Newcombs respectfully submit that the lower court decisions herein are based upon the most stringent, narrow interpretation of GML § 50-e[5] since the 1976 amendments that were specifically enacted to lessen harsh, unjust consequences. There exists a virtual sea of cases interpreting GML § 50-e[5] and Education Law § 3813[2-a] throughout the Judicial Departments. Yet, the soundness of each decision in this vast array can be ascertained by referencing a common denominator – whether the purpose of the statute is being served and an equitable balance between the public corporation and claimant’s interests has been attained. This Court has made clear that “[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] [internal quotation omitted]). In addition an “equitable balance” must 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. East Irondequoit Cent. School Bd., 34 N.Y.2d 139, 142-143 [1974]). This Court need look no further than Respondent’s own factual arguments in determining how Respondent has in no way been prejudiced and how the statutory intent is fully preserved by allowing the Newcombs’ petition. 3 As now is the case in three different courts, Respondent uses the record, specifically the police photographs, to craft an elaborate factual argument that erroneously casts the Newcombs’ claims as “patently meritless.” Respondent’s own argument, appearing in each of its filings, amply demonstrates how the Respondent is not substantially prejudiced in investigating this claim on the merits. Quite the opposite, Respondent’s arguments concerning the merits of the Newcombs’ claim only serve to underscore the fact that the case at bar belongs before a jury, and should not be barred. Respondent’s brief chooses to advance an unduly narrow view of GML § 50- e[5]’s “actual knowledge” factor to support its conclusion that the statute must be construed in favor of the public corporation. This approach is in error because it has led to an unreasonable, unjust result that fails to properly place each factor into the total “mix” of circumstances that this Court has deemed vital. (Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 538 [2006]). In fact, adopting Respondent’s arguments, and leaving the lower courts’ decisions undisturbed, negates the entire purpose of GML § 50-e[5] because incapacitated petitioners such as Austin would always be left with no path by which to satisfy the statutory requirements. Respondent’s brief continues to mimic the lower courts’ error by failing to realize that Respondent’s own actions of placing and removing the Sign supplies notice of the casual connection between the Sign’s placement and the facts and 4 circumstances of the Newcombs’ negligence claim. Such is the case because the municipality’s action of placing this particular Sign at this particular Intersection of Route 25 and Marshall Drive constitutes the very fact and circumstance of the negligence claim. Special Term, the Second Department, and Respondent have all failed to realize the precise nature of the negligence claim. Like the lower courts’ decisions, Respondent’s brief does not consider that the total “mix” of circumstances in this case consists of: i) an incapacitated minor; ii) whose total physical and mental incapacitation was caused by the Respondent’s alleged negligence and lasted beyond the statutory period; iii) the negligent condition was affirmatively created by Respondent; iv) the instrumentality of the negligence (i.e. the Sign) was at all times Respondent’s responsibility and under its control; v) a report of Austin’s accident and injuries was received by the school district within the 90-day period; vi) the public corporation removed the Sign from the location during the 90-day period; vii) police pictures captured and preserved the location of the Sign, which Respondent was responsible for at the time of the accident; viii) the physical contours of the accident location have not changed; ix) witnesses to the accident are known; and x) Respondent’s own actions and a parallel criminal investigation made timely discovery of the Sign impossible for claimant. 5 It is highly significant that Respondent cannot point to a single case since the 1976 statutory amendments where a minor who was rendered physically and mentally incapacitated by the negligence in question, and whose incapacitation lasted during the entire 90-day statutory period and even past the time of the application, subsequently had his or her late notice petition denied. Given the unequivocal record in this case, Austin’s petition should not be the first. ARGUMENT POINT I RESPONDENT FAILS TO RECOGNIZE THAT ITS OWN ACTIONS ESTABLISH ACTUAL KNOWLEDGE AS A MATTER OF LAW Respondent continues to misunderstand why actual knowledge is present in this case. Both Special Term and the Second Department’s errors are rooted in the identical misapprehension. The touchstone of the actual knowledge standard is that a public corporation must have knowledge of the facts and circumstances underlying a claim within 90 days or a reasonable time thereafter. (See Williams, 6 N.Y.3d at 537; Claud v. West Babylon Union Free Sch. Dist., 110 A.D.3d 663, 664 [2d Dept. 2013]). The Newcombs’ precise claim against Respondent is that the large, irregularly shaped, multicolored Sign was negligently placed and allowed to remain at the Intersection. These are the “essential facts constituting the claim.” (Felice v. Eastport/Southport Manor C.S.D., (50 A.D.3d 138, 149 [2d Dept. 2008]). 6 Accordingly, for Respondent to possess actual knowledge it must have knowledge of the facts and circumstances underlying the placement of the Sign because such are the facts that “reveal the nature of the claim.” (Felice, 50 A.D.3d at 149). In contrast, the motor vehicle striking Austin is not the relevant act of negligence for this analysis, but rather how the negligently placed Sign ultimately contributed to the circumstances producing the injury. Special Term found that Respondent possessed knowledge of the Sign’s placement and removal. (R. at 6). Respondent has not contested these facts in either of the lower courts. Middle Country now mischaracterizes this finding by stating that Special Term merely “assumed” these facts. (Dist. Br. at 34). Such characterization elevates form over substance and ignores the reality that the record before Special Term amply demonstrated that Respondent did, in fact, place and remove the Sign. Indeed, the Second Department identified the very facts underlying the Newcombs’ claim by basing its decision on the premise that “the school district was responsible for the placement of the [S]ign.” (R. at 85). Simply put, Respondent’s creation of the negligent condition necessarily supplies it with knowledge that such negligent action could cause injury. Axiomatically, a person or entity affirmatively engaging in a negligent act is on notice that such action may be connected to an injury. However, both Special Term and the Second Department improperly required the Newcombs to make a 7 heightened showing. This error is clearly displayed by the Second Department’s holding that the Newcombs did not show “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). This holding misapplies the proper statutory standard because it: i) supersedes a jury’s role in determining both foreseeability and proximate cause; and ii) requires a GML § 50-e[5] petitioner to make a showing which exceeds even plaintiff’s evidentiary burden regarding foreseeability at trial. This Court has stated that “questions of proximate cause and foreseeability should generally be resolved by the factfinder.” (Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 737 [2014]). This Court has also made clear that “[d]efendants are liable for all normal and foreseeable consequences of their acts…” and a “plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable; it is sufficient that [plaintiff] demonstrate that the risk of some injury from defendants’ conduct was foreseeable.” (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562 [1993]). The Sign at issue was capable of causing injury to members of the public in any number of ways (i.e. falling over, a tripping hazard, obscuring sight lines, or serving as a distraction to drivers on the road). Requiring that Respondent had notice that the Sign “contributed” to the accident (R. 8 7; Dist. Br. at 34), in this specific way both interferes with the jury’s role and turns a blind eye to the knowledge gained from one’s own negligent action. Respondent’s argument rests upon an unwillingness to acknowledge the reality that its placement of the Sign at the Intersection could in fact be an act of negligence, therefore supplying the requisite actual knowledge. In this regard, the Newcombs’ allegations at this stage of the proceeding are to be taken as true and afforded every favorable inference. (See 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.”]) Moreover, the negligent act can be logically understood by the fact that the large Sign was improperly placed at the corner of a heavily trafficked intersection, consisting of both high vehicle and pedestrian volume. As discussed in detail below, Respondent’s negligence is confirmed by the fact that certain Town of Brookhaven ordinances prohibited Respondent’s very conduct and were enacted to prevent the precise type of harm that befell Austin as he was a pedestrian at the Intersection. A. Respondent Ignores the Fact that its Placement of the Sign at the Intersection Supplied the Required Actual Knowledge Respondent’s brief ignores that it previously accurately identified the applicable standard warranting a finding of actual knowledge in the case at bar. In its Second Department brief, Respondent correctly pointed out that the foundation 9 of those cases finding actual knowledge resulting from the actions of a public corporation’s agents rested on the fact that the public corporation’s agents “performed the acts of negligence.” (Resp. 2d Br. at 15). Because Respondent’s agents performed the acts of negligence (i.e. negligently placing and erecting the Sign at the Intersection) explains precisely why actual knowledge should be found in this case. Confronting this standard, Respondent disingenuously argues that the Newcombs first raised the issue of how an agent’s actions impute actual knowledge to a public corporation in their Special Term reply papers. (Dist. Br. at 12). Respondent states that “petitioner argued for the first time [in the Special Term Reply] that actual knowledge of the facts may be imputed to the District since its employees engaged in the conduct giving rise to the claim.” (Id.). Respondent significantly mischaracterizes the record. In the initial Affirmation of Counsel supporting the Order to Show Cause and Petition, the Newcombs specifically argued that “[t]he Second Department has clearly held that actual knowledge may be imputed to a municipality where its employees engaged in the conduct giving rise to a claim.” (R. at 39, ¶ 38, citing Gibbs v. City of New York, 22 A.D.3d 717, 719-720 [2d Dept. 2005]; Picciano v. Nassau County Civil Serv. Comm’n, 290 A.D.2d 164, 174 [2d Dept. 2001]; Ayala v. City of New York, 189 A.D.2d 632, 633 [1st Dept. 1993]). In the very next sentence of the same affirmation, counsel argued that 10 “because respondent, or those acting on its behalf, performed the acts complained of (i.e. negligently placing, maintaining, and removing the Sign at the Intersection) respondent acquired actual knowledge of the facts underlying petitioners’ claim.” (R. at 39, ¶ 38, citing Gibbs, 22 A.D.3d at 719). Respondent proceeds to argue that “even assuming the Sign was negligently placed, that alone, without any notice that the placement of the sign was casually connected to the petitioner’s son’s accident, was insufficient to prove actual notice of the present claim.” (Dist. Br. at 36). This argument, in fact, illustrates the Newcombs’ point. It is the affirmative act of Respondent’s alleged negligent placement of the Sign that provides it with actual knowledge that such negligent action may subject Respondent to liability. Respondent correctly points out that “General Municipal Law §50-e(5) requires more than a contention that the entity was negligent.” (Id.). However, Respondent fails to appreciate that the Newcombs do not make such argument. Rather, the Newcombs have alleged that because Respondent affirmatively created a negligent condition, it was necessarily provided with the requisite statutory knowledge that the actions it undertook could cause harm. It is such active malfeasance creating the negligent condition, as opposed to a municipal employee merely being “involved in the accident” that provides the required notice and further separates this case from those such as Thill v. North Shore C.S.D., (128 A.D.3d 976, 977 [2d Dept. 2015], lv. den. 26 N.Y.3d 914 [2015]). 11 The Second Department’s reliance (R. 85) on Matter of Mitchell v. City of New York, (77 A.D.3d 754, 755 [2d Dept. 2010]), to find that Respondent in this case did not possess actual knowledge is in error because the Newcombs are not claiming that Respondent failed to properly maintain an already existing physical condition or property. Rather, the Newcombs claim that Respondent negligently created the dangerous condition the moment it first placed the Sign at the Intersection, engendering an immediate awareness of the negligence. Respondent believes that Mitchell is applicable because the defective guardrail in that case can be “understood to mean that the guardrail was defective from the time of installation, not that its condition deteriorated as petitioner contends.” (Dist. Br. at 38). Respondent simply misreads the case. In Mitchell the Second Department clearly held that “[t]he NYPD’s investigation failed to suggest any connection between the happening of the accident and any alleged negligence by the respondent in the maintenance of the guardrail.” (77 A.D.3d at 755 [emphasis added]). This holding confirms the key legal distinction that the Newcombs set forth. In Sparrow v. Hewlett-Woodmere U.F.S.D., (110 A.D.3d 905, 907 [2d Dept. 2013]), the Second Department found that respondent in that case did not have “actual knowledge of the essential facts underlying the claim that the monkey bars were dangerous, unsafe, and negligently maintained, or that the respondent did not 12 adequately supervise their use.” [Emphasis added]. This type of negligent maintenance claim is, once again, substantially different in kind from what the Newcombs claim against Respondent. Furthermore, Sparrow also included claims of a failure to supervise which are not present in this case. The same sharp factual distinctions are found in Matter of Devivo v. Town of Carmel, (68 A.D.3d 991 [2d Dept. 2009]), and Matter of Doyle v. Elwood U.F.S.D., (39 A.D.3d 544 [2d Dept. 2007]). Both Devivo and Doyle turned on the fact that a report did not adequately provide an inference that an actionable wrong had been committed. In both cases the Second Department also found there was no reasonable excuse for the delayed filing. There was no claim in either Devivo or Doyle that the evidence of the public corporation’s involvement was completely unknown to the petitioner due to the public corporation’s removal of the allegedly negligent condition and a criminal investigation. Here, in contrast, it has been clearly established that Austin was unable to act due to his incapacitation as well as the ongoing criminal investigation. Unlike the former cases, at bar Respondent removed its negligent property from the scene within 90 days of the incident. Furthermore, the hazards associated with the Respondent’s negligence in this case were apparent from the start. Neither Devivo nor Doyle involved a condition which at the moment it was created by Respondent was in violation of a code provision, thereby evidencing negligence from inception. 13 Respondent misunderstands why the Newcombs have pointed to cases such as Gibbs, Ayala, Picciano, Erichson v. City of Poughkeepsie Pol. Dept., (66 A.D.3d 820 [2d Dept. 2009]), and Clark v. Roswell Park Cancer Inst. Corp., (92 A.D. 3d 1273, 1274 [4th Dept. 2012]), as relevant authority which the lower courts failed to follow. As Respondent itself has already stated, these cases are applicable to the case at bar because in these matters, just as here, Respondent affirmatively “performed the acts of negligence.” (Resp. 2d Br. at 15). B. Respondent’s Violations of the Town of Brookhaven Code Provisions Relating to Permissible Sign Placement Demonstrates its Actual Knowledge of the Negligence Claim The Town of Brookhaven Code provisions at issue are designed to “accomplish the goals of… [p]rotecting 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 is the precise harm that the Newcombs allege. Specifically, the Newcombs claim that the large Sign was improperly placed and positioned too close to the Intersection in violation of Town of Brookhaven Code § 57A-12[c] and its placement at street level caused it to lack the proper clearance between its bottom and street grade in violation of Town of Brookhaven Code § 57A-9[b]. Police pictures of the scene showing the Sign confirm these violations. (R. at 25-29, 68-69). Notably, despite ample opportunity, Respondent has not offered any 14 substantive response to these alleged violations. Ignoring the pictures’ unequivocal depiction of these violations, Respondent instead argues only in conclusory fashion that the determination of these violations “requires factual information beyond the scope of the present Record.” (Dist. Br. at 40). In addressing the alleged violations, Respondent makes a fundamental error by believing that the reference to the Town Code was the Newcombs’ attempt to add a new “cause[] of action” or “new theory of liability” beyond the notice of claim. (Dist. Br. at 39 [citations omitted]). What Respondent fails to realize is that references to the code violations are not new causes of action or theories, but rather serve as one rationale for the claim. The Newcombs’ proposed Notice of Claim specifically alleges that the Sign created a hazard, distraction, and that Respondent was negligent in “improperly selecting the location at which to place said sign.” (R. at 19-20). The allegations regarding the code violations are not a change in the Newcombs’ theory. (See Bennett v. N.Y. City Tr. Auth., 4 A.D.3d 265, 266-267 [1st Dept. 2004], aff’d 3 N.Y.3d 745 [2004]). The stated violations of the Town Code merely amplify these factual allegations. In Zahra v. New York City Hous. Auth., (39 A.D.3d 351, 351 [1st Dept. 2007]), the Appellate Division, First Department clearly held that the plaintiff was not required to plead a specific statutory violation in the notice of claim. Likewise, the Newcombs were not required to specifically cite the alleged code 15 violations in their notice of claim because such violations are not a new theory of liability and are encompassed in the substance of the proposed Notice of Claim. Respondent could readily identify the nature of the alleged violations by the language of the proposed Notice of Claim, the attached pictures, and of course its own actions. (See Brown v. City of New York, 95 N.Y.2d 389, 393 [2000] [“[t]he test of sufficiency of a Notice of Claim is merely whether it includes information sufficient to enable the [public corporation] to investigate”] [internal quotation omitted]). The case of Robles v. New York City Housing Authority, (2014 N.Y.Slip.Op. 31088(U) [Sup. Ct. Bronx Cty. March 13, 2014]), included in Appellants’ Compendium of Authorities, is instructive. In Robles, Justice Aarons provided a detailed analysis of those circumstances where violations of the New York City Administrative Code are encompassed within negligence allegations raised in a notice of claim. Taking up the public corporation’s motion to exclude plaintiff from offering expert testimony related to purported violations of a section of the New York City Administrative Code regarding building maintenance responsibilities, the court permitted the testimony to go forward because the notice of claim regarding negligence included language encompassed by the referenced code section. The Robles court, (2014 N.Y.Slip.Op. 31088(U) at *8), referenced this Court’s decision in Brown, which stated that a reasonable reading of GML § 50-e “‘does not require 16 those things to be stated with literal nicety or exactness.’” (95 N.Y.2d at 393 [internal quotation omitted]). Robles proceeded to hold that “[a] notice of claim need not identify a specific statutory violation so long as the underlying claim is made clear and no new theory is raised.” (Robles, 2014 N.Y.Slip.Op. 31088(U) at *9). Undeniably, the Newcombs’ proposed Notice of Claim makes abundantly clear the basis of the negligence and the underlying facts giving rise to Respondent’s violation of the Town of Brookhaven Code and no new theory has been raised. Importantly, the procedural posture of Robles, and cases such as Mazzilli v. City of New York, (154 A.D.2d 355 [2d Dept. 1989]), relied on by Respondent, also demonstrate why Respondent’s argument concerning the code violations is misplaced. In Robles and Mazzilli, the issue of whether certain claims are either new theories or encompassed within the notice of claim arises in the context of a motion to dismiss a cause of action or to preclude expert testimony on liability. The case at bar deals, in part, with whether Respondent had actual knowledge of the facts and circumstances of the claim within the statutorily required time period so as to excuse a condition precedent to bringing suit. Certainly, if the case is permitted to progress, and Respondent serves a demand for a Bill of Particulars that includes a request for information regarding the statutory violations, the relevant sections of the Town of Brookhaven Code will be identified. 17 C. The Removal of the Sign within 90 Days Following Austin’s Accident Provided Respondent with Actual Knowledge of the Essential Facts Comprising the Claim In its brief, Respondent raises for the first time a claim that the Newcombs made no showing that Respondent removed the Sign. (Dist. Br. at 45). Not only is this argument factually incorrect because of the Newcombs’ investigator’s pictures (R. at 54), but this argument incorrectly presupposes that the Newcombs are in a superior position to know about Respondent’s Sign and imposes an impossible burden to overcome. Next, Respondent relies on the notion that Special Term “merely assumed that the District had knowledge of [the Sign’s] removal for purposes of the [GML § 50-e[5]] application.” (Dist. Br. at 45, citing R. at 6). Respondent attempts to parse the facts to create a distinction without a difference. Such is the case because Respondent was at all times responsible for the Sign and its “assumed” knowledge of the Sign’s removal during the statutory period is the legally significant fact. The Town of Brookhaven Code also confirms Respondent’s obligations concerning the Sign in a provision that states “[i]t shall be presumed that any person, business or entity identified on any sign...or the owner, agent, registrant, manager, business, entity or person in charge of any telephone number, Web site, entity, business or address identified on any sign... is responsible for the placement of that sign… 18 (Town of Brookhaven Code § 57A-11[d]). Respondent’s school, Newfield High School, was identified as being responsible for the Sign. It is also proper for this petition to take the allegations concerning Respondent’s removal of the Sign as true. Yet, the Newcombs conclusively demonstrated that the Sign under Respondent’s control was removed within the 90 days following the accident by placing in the record photographs taken of the scene on June 15, 2013 (with the accident taking place on March 23, 2013) that show the Sign was no longer present at the Intersection. (R. at 54). Respondent further ignores the critical significance that cases such as Matter of Battle v. City of New York, (261 A.D.2d 614 [2d Dept. 1999]), play in the sound application of GML § 50-e[5]. Removal of the Sign within 90 days following the accident guaranteed that Respondent had the requisite knowledge because such removal again provided actual knowledge of the precise facts forming the basis of the alleged negligence – namely the size, position, dimensions, location, and color of the Sign. Respondent attempts to distinguish Battle by arguing that “[g]iven the fact that no one perceived the sign to present an obstruction, its removal would not have suggested that the sign was somehow connected to a motor vehicle accident.” (Dist. Br. at 46). First, the legally determinative point here is that Respondent’s personnel removed the Sign. Thus, by virtue of their actions and presence at the Intersection, 19 they were necessarily apprised of the facts underlying the claimed obstruction within 90 days. Second, Respondent’s argument improperly assumes a factual finding that no one perceived the Sign as an obstruction. The Newcombs are not in a position to know if the Respondent’s personnel removing the Sign in fact identified the obstruction. Respondent cannot escape liability merely on its own say-so by declaring conclusions only it would know. To the contrary, as the responsible entity, such knowledge regarding the Sign is exclusively within Respondent’s purview and demonstrates why Battle, together with cases such as Noseworthy v. New York, (298 N.Y. 76, 80-81 [1948]), instruct that Respondent’s control and possession of the instrumentality of the alleged negligence place it in the best position to have knowledge of the surrounding negligence. Next, Respondent claims that Battle is inapplicable because “[t]here is no evidence that the District had notice based upon inspections and no evidence that the District had an awareness that the sign violated any code.” (Dist. Br. at 47). Ignorance of the Town of Brookhaven Code provisions provides no excuse, just as ignorance of the notice statutes has long been held not to provide a reasonable excuse for a petitioner’s non-compliance. Respondent’s argument ignores the obvious. Those removing the Sign from the Intersection witnessed first-hand, within the 90- day statutory period the facts constituting the code violations as well as the negligent placement. This pragmatism underlies Battle. It simply begs credulity for 20 Respondent to claim a lack of notice or surprise concerning the facts of its own affirmative acts of negligence and code violations. Respondent goes on to contend that “[t]here is merely evidence that the sign was removed at some point after the accident, presumably because the advertised play was over, not because a violation was being remedied as in Battle.” (Dist. Br. at 47). It should be noted that Respondent’s argument again relies on a presumption of facts that only it, as owner and responsible party for the Sign, would have exclusive knowledge. As is the case with its entire argument, Respondent seeks to affirmatively use such exclusive knowledge against the Newcombs for purposes of this petition. Moreover, Respondent again misses the legally relevant point that removal of the Sign from the Intersection for whatever reason was in fact itself a remedying of the violation because it was alleged – and confirmed through the police pictures – that the Sign’s placement at the Intersection was a code violation. This removal, irrespective of why it was done, was a remedying of the negligent condition and code violations. (See also Sergeto v. Town of Oyster Bay, 66 A.D.2d 796, 797 [2d Dept. 1978] [holding that “if the street was repaired, knowledge that it needed repair must have existed”]). The removal of the Sign was like the inspection in Rivera v. City of New York, (169 A.D.2d 387 [1st Dept. 1991]) because the removal inarguably provided Respondent with all necessary information regarding the specifics of the Sign and 21 its location. Furthermore, the removal of the Sign within 90 days following the accident provided Respondent with ample opportunity to investigate the facts surrounding the placement and removal of the Sign. As discussed further below, Respondent ignores the fact that the removal of the Sign and its receipt of the report regarding the manner and location of the accident and Austin’s injuries both occurred during the same 90-day period following the accident. Respondent’s brief also fails to consider the importance of how cases such as Battle provide a petitioner with a meaningful opportunity to satisfy GML § 50-e[5] and maintain sound public policy. The lower courts’ denial of the Newcombs’ petition under these circumstances allows Respondent to unilaterally create its own statute of limitations that is linked to when Respondent happens to remove the instrumentality of its negligence. Respondent also fails to realize how principles of equitable estoppel are triggered by the Sign’s removal. Had Respondent not removed the Sign prior to the expiration of the 90-day period, the Newcombs would have been able to timely identify Respondent as a potential tortfeasor. Noteworthy is that the Appellants were diligent in investigating the scene within 90 days following the accident. Had the Sign remained at the Intersection, the Newcombs’ investigator’s pictures (R. at 54), would have revealed the Sign and the need for motion practice would have been obviated. 22 This Court in Bender v. New York City Health & Hosps. Corp., (38 N.Y.2d 662, 668 [1976]), held that “equitable bar to a defense may arise by virtue of positive acts, or omissions where there was a duty to act.” While the case at bar does not involve Respondent’s express inducement of reliance, equity nonetheless dictates that because of Respondent’s actions, it should be estopped from raising lack of notice as a defense under GML § 50-e[5]. Such is the case because Respondent’s actions made statutory relief necessary in the first place.2 Respondent cannot use GML § 50-e[5] as both a “sword and a shield” and simultaneously claim that GML § 50-e[5] forecloses relief while at the same time argue that its own actions in implicating the very applicability of the statute are of no consequence. D. Petitioner Raymond Newcomb’s Report of the Specifics of His Son Austin’s Accident to one of Respondent’s Schools Provides an Additional Source of the Required Actual Knowledge Throughout its brief Respondent speciously claims that the record does not support Respondent’s actual knowledge of a causal connection between its placement of the Sign and Austin’s accident. Respondent continues this error when addressing the significance of Raymond Newcomb’s report. As the Newcombs have repeatedly argued, the critical inquiry is whether a public corporation has the 2 The dissent in Grubaugh v. City of St. Johns, (384 Mich. 165, 183 [1970]), pointed out that equity has also been used to estop a municipal defendant from interposing a lack of notice defense where such municipality allegedly caused the incapacity necessitating the lack of timely notice. This circumstance is present in this case and provides another basis to apply estoppel to bar Respondent from claiming a lack of notice. 23 necessary knowledge of the underlying facts and circumstances of the claim. Raymond’s report provides such knowledge. Raymond Newcomb’s report regarding the accident was given to Centereach High School within the 90-day statutory period. (R. at 56, ¶ 11). The report included the location of the accident, the details of the accident, and the severity of Austin’s injuries. (Id.). At the time of the report, Raymond was unaware that the Sign was involved in Austin’s accident. However, at such time Respondent was already aware that it had placed a Sign at the Intersection about which it was receiving information concerning an accident. Raymond’s report therefore assured that Respondent had knowledge within 90 days of the accident that one of its students was hit by a car and suffered catastrophic injuries at the very location where Respondent knew it had placed its Sign. Furthermore, highly significant is that Raymond’s report of the accident took place within the same 90-day timeframe as when Respondent removed the Sign from the Intersection. Therefore, the connection between the details of the report and the location of the Sign provided actual knowledge that the Respondent could be held liable for its actions regarding the Sign at the Intersection where the accident took place. Respondent insists that knowledge of the Sign’s placement and that an accident involving one of its students took place at a common location does not provide knowledge of a “connection or nexus between the sign and accident.” (Dist. 24 Br. at 50 [emphasis supplied]). Once again, Respondent repeats the lower courts’ error by failing to appreciate that the appropriate standard is that Respondent was on notice within 90 days or a reasonable time thereafter of the necessary facts regarding potential liability connected to its actions. (See, e.g., Matter of Bird v. Port Byron Cent. School Dist., 231 A.D.2d 916, 916 [4th Dept. 1996] [report provided actual knowledge of underlying facts of claim and signaled to school district that investigation was advisable]). Clearly, Respondent was able to conduct a prompt investigation of these circumstances. A petitioner cannot have his or her claim precluded because a public corporation chooses not to investigate information presented. Further, the fact that Respondent may have chosen not to conduct an investigation and unilaterally adopted the position that there was no connection between its Sign and Austin’s accident at the Intersection does not mean that the report did not provide Respondent with all of the pertinent circumstances to provide actual knowledge of the facts and circumstances of the Newcombs’ claim. Respondent correctly points out that the legal significance concerning the report does not turn on the fact that different schools within Middle Country received the report and placed the Sign. (Dist. Br. 51). A public corporation receives knowledge through its constituent parts, and is responsible for each’s conduct. The Second Department in Cicio v. City of New York, (98 A.D.2d 38, 39 [2d Dept. 1983]), made this principle clear by finding that an accident report given to one of 25 the City’s departments provided the City, the umbrella public corporation, with knowledge. In fact, this reasoning is precisely why Education Law § 3813[1] requires service of a notice of claim at the school district level and not the individual school that may have taken the negligent action. Cicio’s rationale is certainly more applicable to a public corporation such as Respondent Middle Country, which is exponentially smaller than the City of New York. It is the public corporation, not a GML § 50-e [5] petitioner, which is responsible for coordinating, maintaining, and investigating the information it receives. E. The Rule Set Forth in Amabile v. City of Buffalo Confirms Respondent’s Actual Knowledge in this Case Respondent misapprehends the reason why Appellants have invoked this Court’s holding in Amabile v. City of Buffalo, (93 N.Y.2d 471 [1999]), as being germane to the case at bar. Using Respondent’s own analogy, the Newcombs do not seek to make a “comparison of apples to oranges” (Dist. Br. at 55), but rather demonstrate what exactly constitutes an apple (i.e. what type of action qualifies to meet GML § 50-e[5]’s actual knowledge standard). In both the Supreme Court and the Appellate Division, the Newcombs have stressed the legal implications of how Respondent’s own conduct gave rise to the negligent condition. (R. at 38-40, ¶¶ 38-39). Moreover, the Second Department’s holding interprets GML § 50-e[5] in a way that places that statute’s actual knowledge standard in conflict with Amabile’s affirmative creation exception. This Court 26 should, therefore, resolve the question of statutory interpretation wherein the same municipal action has now been held to lead to different legal determinations regarding what constitutes actual notice. (See Matter of Richardson v. Fiedler Roofing, 67 N.Y.2d 246, 250 [1986]). Amabile stands for the proposition that a municipality creating a negligent condition through an affirmative act of negligence need not have received prior written notice before a claim for such negligence can proceed. (See 93 N.Y.2d at 474). Such is the case because the municipality necessarily acquires the requisite actual knowledge of the negligent conditions it creates by virtue of its very actions. Thus, the rationale for dispensing with the need for prior written notice under such circumstances is self-evident. GML § 50-e[5] sets forth those circumstances where a plaintiff is relieved of the requirement of filing a written notice of the claim strictly within 90 days. This is the same purpose underlying Amabile. Respondent’s misunderstanding of the law applicable to this case is laid bare when it argues “[c]conceivably then, a municipality could be aware of a condition, perhaps may have even created it, but nonetheless have no actual knowledge that the condition was casually connected to a claim for injury.” (Dist. Br. at 56). This is the precise opposite of what this Court articulated in Amabile. In the situation Respondent identifies the law is clear that compliance with a prior written notice law would not be required. Such is the case because “how” (Dist. Br. at 56 [emphasis in 27 original]), the dangerous, negligent condition came into existence is the Respondent’s own affirmative acts. In such case, sufficient legal knowledge is established. Because this knowledge is established, GML § 50-e[5]’s criteria is, by definition, also satisfied. Respondent attempts to distinguish Amabile by stating that there is no evidence that the placement of the Sign amounted to a defect. Of course, this argument ignores the aforementioned Town of Brookhaven Code violations, captured by the police pictures. Moreover, Respondent once again makes a unilateral factual determination which is particularly inappropriate given that Austin is entitled to every favorable factual inference in adjudicating this petition. (See City of New York v. State of New York, 27 Misc.3d 1207(A) at *3). Respondent also relies on the supposed lack of any mention to the Sign contributing to the accident on the police report to support its contention. (Dist. Br. at 56). First, the police’s function at the scene was not to conduct an investigation for the defense of a negligence claim. Second, the lack of such opinion, or even the reverse, is inadmissible as evidence at trial. Finally, Respondent’s characterization of the police report is simply factually not correct. Boxes “21” and “22” on the New York State Department of Motor Vehicle Police Accident Report Form MV-104A are where obstructions related to “Environmental” conditions are listed as contributing factors. (See Code Sheet for 28 DMV Police Accident Form MV-104A (6/04) available at The New York Department of Motor Vehicle Website, http://dmv.ny.gov/forms/P33Part07.pdf, p. 31 (last visited March 22, 2016)). These boxes are marked with an “X” which corresponds on the DMV Form MV-104A Code Sheet to an “Unknown” determination. (R. at 23, 67; See Code Sheet, supra.). This clearly demonstrates that the police did not make a determination about such obstructions, a fact consistent with the reality that the police were not conducting a negligence investigation. Respondent overreaches in its assessment of the police report’s implications. Finally, the Sign, which was placed at the Intersection to be read by passing drivers, clearly can be found to cause a driver’s attention to be distracted without being an “obstruction.” Thus, attempting to limit the analysis to the Sign being an obstruction is improper. Common sense dictates that it is dangerous to place a large, multi-colored Sign, which vastly overshadows the average size person, at the precise crossing point of the Intersection of a busy state highway which is heavily trafficked by both pedestrians and motor vehicles during the night-time hours. In fact, the Town of Brookhaven has declared in the Code that [t]he Town Board hereby finds that the use of signs, posters, stickers and advertising devices along public roadways and on public property creates unreasonable distractions to operators of motor vehicles, creates confusion with regard to traffic lights, signs and signals, impairs visibility of 29 pedestrians and motor vehicles, creates safety hazards to the public and, in particular, pedestrians… (Town of Brookhaven Code §57A-11[a]). Furthermore, Respondent misreads GML § 50-e[4] to claim that this provision dictates that notice of the claim and prior written notice can be analyzed differently. This statute states no such thing. GML § 50-e[4] reads [r]equirements of section exclusive except as to conditions precedent to liability for certain defects or snow or ice. No other or further notice, no other or further service, filing or delivery of the notice of claim, and no notice of intention to commence an action or special proceeding, shall be required as a condition to the commencement of an action or special proceeding for the enforcement of the claim; provided, however, that nothing herein contained shall be deemed to dispense with the requirement of notice of the defective, unsafe, dangerous or obstructed condition of any street, highway, bridge, culvert, sidewalk or crosswalk, or of the existence of snow or ice thereon, where such notice now is, or hereafter may be, required by law, as a condition precedent to liability for damages or injuries to person or property alleged to have been caused by such condition, and the failure or negligence to repair or remove the same after the receipt of such notice. In contrast to Respondent’s contention, the plain language of GML § 50-e[4] simply means that filing a notice of claim within the 90-day time period does not relieve a showing of prior notice of the alleged claim when the law so requires. The Newcombs point out that Amabile articulates one manner in which the GML § 50- 30 e[5] actual knowledge determination is satisfied. GML § 50-e[4] is simply not applicable to this determination. In reality GML § 50-e[4]’s requirement that both notice laws must be complied with only illustrates how Amabile’s “affirmative creation” exception should be reconciled with finding actual knowledge under GML § 50-e[5] so as not to lead to divergent legal conclusions based on the same conduct. Respondent wrongly states that adopting the Newcombs’ “argument would essentially eliminate the notice of claim requirement whenever it is claimed that the entity affirmatively created the defect.” (Dist. Br. at 58). Rather, all the Newcombs assert is that, consistent with Amabile, in the class of cases where it is alleged that the public corporation affirmatively created the hazardous negligent condition, such creation is sufficient to provide actual knowledge for purposes of a GML § 50-e[5] petition. POINT II SUBSTANTIAL PREJUDICE IS ABSENT BECAUSE THE RESPONDENT HAS NOT REFUTED THE INCAPACITATED MINOR’S SHOWING THAT RESPONDENT IS IN NO WAY HINDERED IN INVESTIGATING THE MERITS OF THE CLAIM The prejudice determination must focus on: i) what evidence the petitioner relies on to show that the public corporation had an opportunity to investigate the merits of the claim while information was still available; and ii) the evidence Respondent offers to rebut such showing and demonstrate that it was prejudiced. The facts in this case do not support a finding of substantial prejudice because, as 31 was the case in Gerzel v. City of New York, (117 A.D.2d 549, 552 [1st Dept. 1986]), the Newcombs have shown that “[t]here is a complete record of the facts underlying petitioner’s tort claim…” upon which Respondent can rely for full investigation and reconstruction of the events in question. Respondent’s argument, however, appears to revolve around the theory that without actual knowledge, prejudice to the public corporation is always found. (Dist. Br. at 66-67). This argument is in error because whether a public corporation is substantially prejudiced is an independent factor which must be separately considered in the GML § 50-e[5] analysis. The plain language of GML § 50-e[5] explicitly lists the substantial prejudice determination as an independent factor requiring consideration together with actual knowledge. Prejudice was identified an important factor in Williams’ “mix” of circumstances. Respondent seemingly misapprehends why the actual knowledge standard is important. There is a logical relationship between actual knowledge and prejudice. Actual knowledge helps inform the prejudice determination. A finding of actual knowledge implies that it is more likely that a public corporation will not be prejudiced in its defense. Conversely, merely because a public corporation does not possess the requisite knowledge does not automatically preclude a finding that the public corporation is substantially prejudiced in its ability to conduct a timely 32 investigation of the claim so as to be unable to defend against the claim on the merits and fulfill the statutory purpose. As has been observed, [i]f it is shown that the public corporation will not be substantially prejudiced by the delay, but that it did not have actual knowledge of the essential facts constituting the claim within a reasonable time, the strong tendency of the court should be to grant the extension unless there are overwhelming reasons to deny the application, such as those which would undermine the fairness inherent in section 50-e(5). (Lawrence M. Nessenson, Note, “N.Y. General Municipal Law Section 50- e(5):Ameliorating New York’s Notice of Claim Requirements, 12 Fordham Urban Law Journal, Issue 3, Article 6, 563, 588 [1983]). The Second Department has granted GML § 50-e[5] petitions where it found that, despite there not being any actual knowledge, there was nonetheless no substantial prejudice to the public corporation in defending the claim on the merits. (See, e.g., Matter of Underwood v. N.Y. City Hous. Auth., 177 A.D.2d 698, 699 [2d Dept. 1991] [despite finding no actual knowledge, petition granted where “the delay in service of a notice of claim will not cause the [public corporation] to suffer prejudice in defending this action”]; Matter of Bensen v. Town of Islip, 99 A.D.2d 755, 755-756 [2d Dept. 1984] [actual knowledge determination not dispositive of substantial prejudice inquiry]). This Court need only look at the Second Department’s decision in Bensen to ascertain how the lower court abused its 33 discretion in assessing Austin’s incapacity and departing from its prior precedent regarding the same type of cases. Bensen dealt with a petitioner similarly situated as Austin. The petitioner in Bensen was a minor rendered severely incapacitated as a result of alleged municipal negligence. Following the accident the petitioner spent approximately five months in the hospital, required 24-hour care, was continuously confined to bed, and was classified as a quadriplegic. The notice of claim against the Town of Islip, alleging negligence for failure to have a life guard on duty, was brought approximately one year after the incident, four months longer than the case at bar. With similar reasoning as what was found in this case, Special Term denied the petition finding that “[t]he claimant has made no showing that the Town of Islip had any knowledge of his accident prior to this application…[a] delay of close to one year in making a claim against the municipality is certainly prejudicial to the municipality’s ability to mount a proper defense.” (Bensen, 99 A.D.2d at 755 [internal quotation omitted]). The Second Department rejected Special Term’s reasoning and allowed the incapacitated minor’s application. The court observed that the presence or absence of any one of the statutory factors is not dispositive and held that “[w]e do not consider the possibility that the town did not receive actual knowledge until the date of this application as necessarily dispositive.” (Id.). The court found that the incapacitated minor petitioner “was more concerned with the condition of his health 34 than with deciding whether, and if so, how to commence a lawsuit against the [public corporation] within the statutorily prescribed time.” (Bensen, 99 A.D.2d at 756 [internal quotation omitted]). The court further rejected Special Term’s belief that the delay in serving the notice of claim was presumptively prejudicial noting that the statute “does not mandate such a finding.” (Id. at 756, citing Monge v. City of New York Dep’t of Social Servs., 95 A.D.2d 848, 849 [2d Dept. 1983], discussed further infra). The court went on to hold that [i]n this case, the municipality has made no showing of prejudice. Exercising our discretion, we conclude that, under the circumstances of this case, even if respondent did not receive actual knowledge of the accident until the date of this application, given the nature of [petitioner’s] injuries and the absence of a showing of substantial prejudice, he should be allowed to serve a late notice of claim. (Id. at 755 [emphasis added]). The Second Department’s own holding in Bensen summarily refutes as a matter of law Respondent’s arguments concerning how an alleged absence of actual knowledge necessarily defeats the incapacitated minor Austin’s petition. Bensen also shows how a lack of actual knowledge does not automatically link to a finding of substantial prejudice and how when severe incapacitation is involved, the petition is granted when the municipality does not show how it has been substantially prejudiced. Simply following the express holding of its prior precedent in Bensen ought to have led to a similar reversal of 35 Special Term’s decision in this case and a granting of Austin’s petition. Yet, as with the petitioners in Monge and Rojas v. HHC. (127 A.D.3d 870, 873 [2d Dept. 2015] [one month prior to this case Second Department deemed six-month delay “relatively short” and allowed petition]), what was sufficient for the Bensen petitioner was arbitrarily deemed insufficient for Austin, even where there was a shorter delay. At bar, Respondent’s only claim of prejudice is a single sentence contained in the affirmation of counsel, who lacks knowledge of the underlying facts, which is both conclusory and unsupported by any evidence. (R. at 64, ¶ 15). It is indisputable that Respondent has submitted no evidence of prejudice. Special Term filled in Respondent’s factual gaps by impermissibly assuming facts dehors the record. (R. at 7). Thus, the heart of Respondent’s prejudice argument is repetition of the same legal error found in Special Term’s affirmed order – delay beyond the statutory period creates the “inference of prejudice.” (Dist. Br. at 75 [citations omitted]). This conclusion falls under its own weight because, by definition, every GML § 50-e[5] petition is brought beyond the 90-day statutory period. As there are an ocean of cases permitting the filing of late notices of claim, it is axiomatic that not every late notice is inherently prejudicial. This is the very reason why the legislature enacted GML § 50-e[5]. Consistent with this purpose, courts have repeatedly sustained petitions brought beyond the expiration of the 90-day period (and exceeding when 36 the Newcombs filed their proposed Notice of Claim). (See Bureau v. Newcomb Cent. School Dist., 74 A.D.2d 133, 134-135 [3rd Dept. 1980] [9 months]; Matter of Wemett v. County of Onondaga, 64 A.D.2d 1025, 1025-26 [4th Dept. 1978] [7 months]; see also Palazzo v. City of New York, 444 F.Supp. 1089 [E.D.N.Y. 1980] [application allowed 12 months after claim arose]). Respondent contends that the Second Department’s holding rests on the presupposition that the incapacitated minor petitioner Austin did not meet his burden of establishing a lack of substantial prejudice. (Dist. Br. at 67). Respondent’s observation places the Second Department’s, and Special Term’s, three legal errors regarding prejudice into plain focus. The lower courts have erred first by ignoring all of the factors showing why Respondent is simply not prejudiced by the late notice of claim; second by failing to realize that such factors dictate as a matter of law that Respondent has not been substantially prejudiced; and thirdly by failing to apply the appropriate evidentiary burden regarding prejudice applicable to an incapacitated petitioner. If a petitioner such as Austin is found unable to show a lack of prejudice, the statute would be construed so as to make any petitioner hard-pressed to ever make a successful showing. Austin has offered detailed police pictures of the Sign at the Intersection at the time of the accident. Austin has also pointed out that the contours of the accident location have not changed. Moreover, the witnesses to the motor vehicle strike are 37 known by virtue of the police investigation. Indeed, the fact that Respondent was at all times in control and responsible for the alleged injury-causing property (i.e. the Sign) and the personnel involved in the Sign’s placement and removal is a strong factor demonstrating a lack of prejudice. Austin’s petition simply does not involve the “stale claims” the statute was meant to eliminate. (See Sandak v. Tuxedo Union School Dist. No. 3, 308 N.Y. 226, 232 [1954] [internal quotation omitted]). A critical error in the lower courts’ holdings is the failure to apply the prejudice balance established in cases such as Prude v. County of Erie, (47 A.D.2d 111, 112-113 [4th Dept. 1975]). The Fourth Department in Prude recognized a type of sliding scale between the evidence showing mental incapacity and prejudice. The more severe the incapacity, the greater the weight of evidence needed to show prejudice. This evidentiary scale has been solidified across the Judicial Departments, including previously in the Second Department. (See Matter of Hayes v. Del.-Chenango-Madison-Otsego Bd. of Coop. Educ. Servs., 79 A.D.3d 1405, 1405-06 [3d Dept. 2010]; Matter of Haeg, 30 A.D.3d 519, 520 [2d Dept. 2006]; Matter of DeMolfetto, 216 A.D.2d 295, 296 [2d Dept. 1995]; Matter of Driskell v. City of New York, 31 A.D.2d 541, 541 [2d Dept. 1968]). Underpinning these holdings is the constitutional principle that the law cannot compel a person to do that which he or she cannot do. (See Grubaugh v. City of St. Johns, 384 Mich. 165, 169- 177 [1970]). 38 Austin was rendered totally incapacitated as a result of the very negligence for which he seeks to hold Respondent responsible. Applying the holdings of cases such as Prude to the record in this case leads to the inescapable conclusion that the completely incapacitated minor, who remained incapacitated through the statutory period and to this day, more than satisfied any showing of prejudice. Conversely, Respondent has not been deprived of an opportunity to locate and interview witnesses while their memories are still fresh. Respondent has not even alleged that any potential witness is unavailable let alone demonstrate that they are “actually unavailable.” (Perez v. New York City Health & Hosps. Corp., 81 A.D.3d 448, 449 [1st Dept. 2011]; see also Caminero v. New York City Health & Hosps. Corp., 21 A.D.3d 330, 333 [1st Dept. 2005] [fact that public corporation’s personnel moved out of state did not establish actual unavailability, and thus prejudice]). Respondent’s arguments are deficient because, inter alia, it has never claimed that it attempted an investigation and that such investigation was hindered because of the delay. (See Phillipe v. City of New York, 8 Misc. 3d 1016(A) at *3 [Sup. Ct. N.Y. Cty. April 8, 2005] [prejudice not found where public corporation “speculatively” claimed its investigation was hampered yet failed to offer any affidavit from any investigator who may have been hindered by the late notice of claim]). In reality, as the Newcombs have pointed out, Respondent’s very arguments in the Supreme Court, the Appellate Division, and now this Court belie any finding of prejudice. 39 A. The Police Pictures Dispense With any Prejudice Notwithstanding Respondent’s assumption, the record is clear that neither Special Term nor the Second Department took the police photographs into consideration in their GML § 50-e[5] analysis. (R. at 4-8; 84-85). Yet, the police pictures taken immediately after the accident are the single most important piece of evidence any public corporation in Respondent’s position could hope to have in investigating this claim. The significance of the photographs in this case are the same as those in Gerzel where the First Department, dealing with a longer delay in filing (7 months), held that “[t]he photographs clearly sufficed to apprise the [Respondent] 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. (See, Karten v City of New York, 109 A.D.2d 126, 127 [1st Dept 1985]...the photographs taken sufficiently connected the accident and the alleged defective condition…” (117 A.D.2d at 551). Here, the police pictures captured the Sign at the scene as it existed at the time of the accident. “The information available now is substantially the same as it would have been had a timely notice of claim been filed.” (Id. at 552, citing Rechenberger v. Nassau County Med. Center, 112 A.D.2d 150, 153 [2d Dept. 1985]). After service of the pictures in November 2013, Respondent was in just as good a position to investigate the circumstances underlying the Newcombs’ claim 40 as if written notice had been be served the day of Austin’s accident. It is for this reason that courts across the state have consistently relied on police pictures to find that prejudice is eliminated. (See, e.g., Barnes v. New York City Hous. Auth., 262 A.D.2d 46, 47 [1st Dept. 1999] [public corporation found unable to show prejudice because it had photographs of the location as it existed at the time of the accident]). Respondent has proven the Newcombs’ point concerning the pictures by consistently using such pictures to offer an elaborate – and incorrect – factual attack on the merits of the Newcombs’ claim. Respondent incorrectly believes that it is entitled to make this detailed attack on the merits while simultaneously arguing that it was deprived of an inchoate statutory right to conduct a timely and thorough investigation. What Respondent fails to appreciate is that the police pictures constitute the best evidence of the Respondent’s Sign as it existed at the time of the accident, thereby preserving all necessary facts in that regard. Respondent further contends that the police picture are somehow inadequate because they may not reveal if the Sign was ever moved before the accident and if so, how and by whom. (Dist. Br. at 74). Critical is that Respondent’s argument departs form what the Second Department has previously identified as the legally significant time frame for when a delay causes prejudice to the public corporation. In Vitali v. City of New York, (205 A.D.2d 636, 636 [2d Dept. 1994]), the court found that a delay can be prejudicial insofar as the passage of time “prevent[s] an accurate 41 reconstruction of the circumstances existing at the time the accident occurred.” [Emphasis added] [internal quotation omitted]. Respondent’s argument also ignores the obvious. Respondent was at all times responsible for the Sign. Respondent was the party who had information concerning the Sign. Respondent is in the best position to know about the happenings regarding its own property. To speculate that someone may have moved the Sign when Respondent knows whether such a claim is true based upon its act of placing the Sign is disingenuous. Certainly, Respondent is the only party who can say whether or not such a claim is true. Before Special Term, Respondent offered absolutely no admissible evidence, or even averments in its counsel’s affirmation, that the Sign was somehow in a different position at the time of the accident than it had been when it was originally placed by Respondent. It is beyond cavil that if Respondent could demonstrate such a claim to be true, it would have done so. GML § 50-e[5]’s prejudice determination cannot turn on a petitioner’s ability to prove a negative. Respondent’s conjecture as to why the police pictures may not dispense with prejudice is quickly seen as deficient when compared to this Court’s ruling in Noseworthy. This is so because when “‘the management and control of the thing which has produced the injury [i.e. the Sign] is exclusively vested in the defendant, it is within [its] 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 42 v. Manice, 166 N.Y 188, 193-194 [1901]). These longstanding principles define exactly why Respondent’s arguments must fail. POINT III THE LOWER COURTS ERRED IN DENYING THE PETITION BECAUSE THE TOTALITY OF THE CIRCUMSTANCES RENDERED IT IMPOSSIBLE FOR THE INCAPACITATED MINOR TO COMPLY WITH THE STATUTORY REQUIREMENTS Since the 1976 statutory amendments, it is a rare case where a “reasonable excuse” for a late notice of claim has not itself resulted in granting the GML § 50- e[5] petition. It is an unprecedented case where a minor petitioner, incapacitated as a result of the alleged negligence, whose incapacitation lasted beyond the 90-day statutory period and whose claim was concealed as a result of Respondent’s own actions and a parallel criminal investigation, has his or her claim deemed statutorily barred. The lowers courts have legally erred by construing GML § 50-e[5] so as to improperly require a mentally and physically incapacitated petitioner to perform a statutory act that he could not perform. (See 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]). Unlike in Matter of Gillum v. County of Nassau, (284 A.D.2d 533, 533 [2d Dept. 2001]), relied on by Respondent (Dist. Br. at 81), where there was an additional five-month delay after the incapacitated petitioner was able to retain counsel, Austin’s complete incapacitation lasted throughout the entire statutory period and he was unable to take 43 any steps to secure his legal rights. Yet, departing from Savelli v. City of New York, (122 A.D.2d 55 [2d Dept. 1986]), and Bensen, the Second Department in this case simply did not consider the factor of Austin’s incapacity in crafting its decision. (R. at 84-85). As was held in Prude, the fact of such total incapacity requires the GML § 50- e[5] analysis be viewed through a specific prism. This reality is seen vividly in pre- 1976 statutory amendment case of Stuto v. City of New York, (192 Misc. 935, 936 [1948]), where the petitioner’s total incapacity lasting throughout the statutory period was found to warrant granting the filing of a late notice of claim. This result occurred during a period where the notice statute was construed more narrowly. Certainly, in the current period where the legislative intent is to construe the statute more broadly, a similar complete incapacitation should be afforded significant weight and not be held against the petitioner. The Fourth Department in Ziecker v. Orchard Park, (70 A.D.2d 422, 425 [4th Dept. 1979], aff’d, 51 N.Y.2d 957 [1980]), observed that the 1976 statutory amendments were meant to lessen the “unjust consequences to accident victims” and avoid a challenge of constitutional magnitude such as occurred in other jurisdictions where similar notice of claim statutes have been held unconstitutional.” (Id., citing Reich v. State Highway Dept., 386 Mich. 617 [1972]; Turner v. Staggs, 89 Nev. 230 [1973], cert. den. 414 U.S. 1079 [1973]; Hunter v. North Mason High School & 44 School Dist. No. 403, 85 Wn.2d 810 [1975]; O’Neil v. City of Parkersburg, 237 S.E.2d 504 [W.V. 1977]; Sears v. Southworth, 563 P.2d 192, 194 [UT. 1977]); see also Tafoya v. Doe, 100 N.M. 328, 332 [App. 1983] [holding that “the view that one unable to comply with a notice requirement by reason of minority is protected by the reasonableness requirements of the common law, the Fourteenth Amendment to the United States Constitution, or similar provisions in their state constitutions”]). The Ziecker court’s constitutional reflection underscores the importance of placing Austin’s severe incapacity into proper balance. Respondent seems to suggest that Austin’s total incapacitation is somehow lessened because he was a minor and his father Raymond took steps to pursue Austin’s claim. (Dist. Br. at 78-79). Relying on this argument ignores the reality of the record. First, because Austin cannot verbalize, he was, and remains, unable to serve as a source of information concerning what happened during the accident. Second, Austin’s complete mental and physical incapacitation prevented him from taking any legal steps to preserve his rights, or even be able to assist in the advancement of his claims. Strictly applying the notice statute to such a claimant is not only against the legislature’s stated purpose, but raises constitutional due process concerns. (See Grubaugh, 384 Mich. at 169-177). Raymond Newcomb’s role is of no consequence as to how his son Austin’s incapacitation should be analyzed. Respondent also fails to recognize that Raymond 45 Newcomb himself was unable to identify Respondent as an alleged tortfeasor because Respondent had removed the Sign and the police pictures were unavailable because of the criminal investigation. Furthermore, this Court has made clear that “[t]here is nothing in the statute which states that a husband, brother, cousin, friend or other person must attend to the serving of a notice of claim if the injured person is incapacitated from doing so.” (Rosenberg v. City of New York, 309 N.Y. 304, 307 [1955]; see also Trakis v. City of New York, 56 N.Y.2d 1018, 1018 [1982] [“it was improper for Special Term to deny claimant[‘s]…application on the basis of his wife’s ability to file a notice of claim on his behalf”]). Despite these circumstances, Raymond Newcomb nonetheless acted diligently in investigating the claim and his counsel arranged for an investigator to visit the scene within 90 days. (R. at 36, ¶ 30; 54). Had Respondent’s Sign not been moved from the Intersection prior to that time, this petition would not be necessary. Assuming arguendo, the soundness of Special Term’s finding that “no one, including the petitioner” (R. at 7) had knowledge of the essential facts of the claim until after the 90-day period had expired underscores the need to bring to bear the “delayed discovery” principles in cases such as Sexstone v. City of Rochester, (32 A.D.2d 737, 737 [4th Dept. 1969]), Memorial Hosp. v. McGreevey, (152 Misc.2d 127, 130 [1991]), and the tolls found in CPLR 208 to the unique convergence of circumstances found in this case. Applying Special Term’s legal construction of 46 GML § 50-e[5] to its own factual findings would preclude Austin from ever being able to be awarded statutory relief. In extraordinary cases such as the one at bar involving: i) complete incapacitation; ii) coupled with a parallel criminal investigation that made the only way of identifying the evidence of the negligence unavailable; and iii) Respondent’s own responsibility for the removal of the negligent condition prior to the 90-day period, the functional reality of how the statute could have been timely satisfied must be taken into account in making the GML § 50-e[5] determination. This is particularly true because the notice statute is to be liberally construed. Clearly, the lower courts in this case have not weighed these circumstances. Contrary to Respondent’s assertions and consistent with this Court’s pronouncement in Cohen v. Pearl River U.F.S.D., (51 N.Y.2d 256, 265-266 [1980]), the Newcombs do not advocate for a per se rule that a toll, or a delayed discovery rule is applicable in all cases involving incapacity. Rather, the Newcombs point out that in cases such as Austin’s these principles must be given sufficient legal weight so as to enable the petitioner to meet the statutory notice burden and avoid an arbitrary decision. The statutory construction in this case has created the atypical result whereby one statute (CPLR 208) deems incapacity a sufficient reason to extend the limitation period for a cause of action, yet the same incapacity is not sufficient grounds under another statute (GML § 50-e[5]) to excuse the strict 47 application of a shorter time limitation that is a condition precedent for the same cause of action. This application of GML § 50-e[5] renders CPLR 208 meaningless. Previously, the Second Department has taken the inability to timely discover a respondent as a tortfeasor into consideration. Yet, the Second Department’s abuse of discretion and arbitrary holding is again shown by its failure to follow its very own precedent in Monge v. City of New York Dep’t of Social Servs., (95 A.D.2d 848). In Monge, the Second Department reversed the Supreme Court’s denial of leave to serve a late notice of claim holding that five months beyond the 90-day limit was within a reasonable period of time. (See id. at 848-849). The very same five- month time period exists in Austin’s petition. Yet, consideration of its own precedent in Monge was of no moment to the Second Department. Monge is substantially similar to this case in that the petitioner in Monge, like the Newcombs, did not know about the facts underlying the alleged negligence until after the 90-day time period expired. (See id.). On October 17, 1981, petitioner, the director of an arts center, was attacked at his home and left in critical condition. The alleged perpetrator was a watchman hired by the Department of Social Services to work at the center where the petitioner was director. As in this case, the petitioner was taken to the hospital, police investigated the scene, and a criminal prosecution ensued. On November 5, 1981, the perpetrator was arrested and on the next day 48 petitioner pressed charges. On March 27, 1982, petitioner learned for the first time, through a Queens District Attorney press release, that the perpetrator had a prior weapons possession conviction. Because the watchmen was supposed to be hired without prior conviction, the petitioner believed this fact supported a negligence claim against the public corporation doing the hiring. The deadline to file a notice of claim in that case expired in January of 1982, 90 days after the October 1981 incident. The Monge Petitioner first learned of the facts supporting his claim in March 1982, and proceeded to consult an attorney. The Second Department found that the attorney “moved within a reasonable time thereafter for permission to serve a late notice of claim.” (Monge, 95 A.D.2d at 849). The attorney filed for permission to serve a late notice of claim in June 1982. In the “absence of any demonstrable showing by the respondent that its defense has been substantially prejudiced,” the Second Department allowed the petition. (Id.). This holding has significant application to the case at bar because the five-month time frame is the same; like the Newcombs, the petitioner could not know the facts underlying his claim until after the 90 days had expired and there was there no discernable prejudice to the public corporation. Furthermore, the Newcombs’ petition in this case did not have a three month gap as Monge did between when the facts were discovered and when the late notice petition was filed. Here, Austin’s counsel, while Austin himself was still in 49 a coma and had absolutely no articulable knowledge of the accident, only learned about the facts five months after the 90-day period expired and proceeded to swiftly file a proposed Notice of Claim. Yet, what was sufficient for the petitioner in Monge was somehow once again not sufficient for the severely incapacitated Austin. (See also Sergeto, 66 A.D.2d at 797 [consideration given to fact that petitioner was very young adult and consulted attorney short time after release from hospital]). POINT IV RESPONDENT’S ARGUMENTS CONCERNING THE MERITS OF THE CLAIM ARE LEGALLY MISPLACED, NOT IN ACCORDANCE WITH THE ACTUAL FACTS, AND REVEAL THAT RESPONDENT HAS EXPERIENCED NO SUBSTANTIAL PREJDUICE Respondent has presciently failed to recognize that the assessment of the merits of the Newcombs’ claim are simply not at issue in this petition. Because “proof of the merit of [the petitioner’s] claim is not a stated criterion for permission to [serve] a late notice under subdivision 5 of section 50-e, [the petitioner was] under no obligation to present a prima facie case on this motion.” (Jenkins v. County of Westchester, 133 A.D.2d 808, 809 [2d Dept. 1987], quoting Hamm v. Mem’ Hosp. of Greene County, 99 A.D.2d 638, 639 [3d Dept. 1984]). Accordingly, both Special Term and the Second Department were correct in not addressing the merits of the claim because a court addressing a late notice petition is “not here concerned with the substantive merits of the lawsuit, but rather with whether the governing criteria properly invoke the discretionary power of the court to permit a late notice of claim 50 to be filed.” (Matter of Reisse v. County of Nassau, 141 A.D.2d 649, 650 [2d Dept. 1988] [internal quotation omitted]). Moreover, the facts the Newcombs allege are also to be given every favorable inference. (See City of New York v. State of New York, 27 Misc.3d 1207(A) at *3). This is only appropriate because at this stage of the proceedings, the Newcombs have had no opportunity to establish and prove their claim through discovery. As the court held in Matter of Abbate v. City of New York, (49 Misc. 3d 1207(A) at *4 [Sup. Ct. Kings Cty. October 5, 2015]), while addressing merit based arguments in a GML § 50-e[5] proceeding, “[u]pon the completion of discovery, the merit or lack thereof, is more properly the subject of a motion for summary judgment or for a jury.” (See also Reisse, 141 A.D.2d at 650 [“[w]hether the petitioner will be successful on his causes of action is an issue more properly determined at a later stage of the proceedings than at this juncture”]). Respondent’s contentions regarding the merits require considerable factual adjudication. Respondent’s argument that the violation of the Town Code “requires factual information beyond the scope of the present Record…” (Dist. Br. at 40), when a mere glance at the police pictures establishes the code violations, exemplifies its selective application of the relevant rules and how it has taken factual license for itself. Respondent improperly casts itself as judge and jury and makes comprehensive “factual rulings” which afford itself every favorable inference and unilaterally absolve it from all liability based on the Sign’s placement at the 51 Intersection. What Respondent fails to understand is that in those cases under GML § 50-e[5] where a claim was found to be patently meritless, the claim was able to be adjudicated as a matter of law. Such cases are understood to mean those where the claims are adjudged based on an obvious lack of standing, jurisdiction, or inapplicability of an alleged cause of action. For example, in this Court’s decision in Catherine G. v. County of Essex, (3 N.Y.3d 175 [2004]), cited by Respondent, this Court found the claim to be patently meritless because the petitioner’s son did not fall under the scope of the Social Services Law. Accordingly, the claim was capable of being determined as a matter of law. Here, of course, the claim requires many factual determinations. Furthermore, Respondent’s arguments contain not only a self-serving factual conclusion, but are also against the weight of the evidence the Newcombs have already placed in the record. The nucleus of the Newcombs’ claim is that the Sign as it existed at the Intersection was i) an impermissible distraction to on-coming westbound traffic and ii) created a distraction and obstruction at the Intersection for both pedestrians and motorists. (R at 13, ¶ 5; 19-29). The record, as it currently exists for this petition, more than amply supports these claims. The Sign was at the precise location where Austin was crossing the Intersection from the north side during the night-time hours. (R. at 25-29, 68-69). The Sign was placed at the crosswalk at the Intersection. A pedestrian would have 52 been required to pass directly to the side of and then in front of the Sign as he or she was walking from the elevated street grade in front of the Dunkin Donuts retail location to the Intersection. As the photographs also indicate, the Sign was positioned so as to directly attract the attention of those on the roadway, thereby providing both a distraction and obstruction to the oncoming westbound traffic’s view. The ability of the Sign to block pedestrians at the Intersection is actually confirmed by the police pictures. As pictures in the record depict (R. at 26-27), the Sign is larger than and overshadows average size adults standing at the Intersection. These pictures also provide the perspective of how oncoming westbound traffic would have an impeded view of those standing at the sidewalk near the Intersection. The limited evidence in the present record confirms the merits of the Newcombs’ claims. The fact that the Sign was placed in violation of the Town of Brookhaven Code is once again significant. At trial, these violations shall be evidence of Respondent’s negligence and being undisputed, will constitute prima facie evidence of such negligence. (See Lein v. Czaplinski, 106 A.D.2d 723, 724 [3rd Dept. 1984]). In contrast, Respondent’s reliance on this Court’s opinion of In re Hess, (15 N.Y.3d 813, 814 [2010]), is misplaced because, unlike in Hess, Respondent cannot “establish[] that it did not create or have responsibility for the allegedly hazardous 53 condition of the intersection.” To the contrary, the exact opposite is true. As set forth in the Town of Brookhaven Code, Respondent was at all times Responsible for the Sign. It is for a jury to decide the proximate cause between the injury and the alleged hazardous condition Respondent’s Sign created. This places the matter in sharp contrast to Phaler v. Daggett, (170 A.D.2d 750 [3d Dept. 1991]), which, while not involving a GML § 50-e[5] petition, Respondent relies. Unlike this case the facts in Dagett revealing that a sign was not the proximate cause of the accident went unchallenged. (See id. at 752). Dagett’s holding concerning the negligence with respect to the placement of the Sign was also based on the question of duty because had the sign in question obstructed plaintiff’s view as claimed, Vehicle and Traffic Law §§ 1142 and 1172 would have required plaintiff to stop, thereby eliminating the Sign as being a proximate cause as a matter of law. (See id. at 751-752). These facts are simply not germane to the case at bar and Dagett expressly states that “determinations as to causation are generally left for the trier of fact.” (Id. at 752). Respondent’s attempt to argue the merits only serves to show why the petition should be granted as a matter of law because Respondent cannot be said to be “substantially prejudiced” after making such a factual argument based on the very evidence supporting the petition. Consistent with its other arguments, Respondent again attempts to use the record as both a “sword and a shield.” 54 CONCLUSION As set forth herein and in the Petitioners-Appellants’ opening brief, 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 March 23, 2016 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 APPENDIX A1 A2 A3 A4 A5 A6 Fordham Urban Law Journal Volume 12, Issue 3 1983 Article 6 N.Y. General Municipal Law Section 50-e(5): Ameliorating New York’s Notice of Claim Requirements Lawrence M. Nessenson∗ Lawrence M. Nessenson† Lawrence M. Nessenson‡ Lawrence M. Nessenson∗∗ ∗ † ‡ ∗∗ Copyright c©1983 by the authors. Fordham Urban Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ulj A7 N.Y. General Municipal Law Section 50-e(5): Ameliorating New York’s Notice of Claim Requirements Lawrence M. Nessenson, Lawrence M. Nessenson, Lawrence M. Nessenson, and Lawrence M. Nessenson Abstract A multitude of provisions scattered throughout New York’s consolidated and unconsolidated laws require that plaintiffs serve “notice of claim” of their tort actions on defendant public corpo- rations. New York General Municipal Law section 50-e governs New York procedure for serving this notice of claim upon public corporations including when and upon whom service should be made, the form and contents of the notice of claim, and how notice of claim may be served. Com- pliance with the requirements of section 50-e is a condition precedent to commencement of a tort action against a public corporation wherever such notice of claim is required by law. This Note analyzes the functions and malfunctions of General Municipal Law section 50-e(5). Although subdivision five sets forth factors to guide the courts in using their discretion, the bounds of this discretion have not been explicitly delineated. This Note ranks the factors set forth in subdivision five according to their intended weight in court decisions, and will suggest a standard judicial approach to subdivision five motions to extend the time to serve notice of claim. KEYWORDS: new york municipal law, civil procedure, notice of claim, service, general munic- ipal law section 50-e, court discretion, extension A8 N.Y. GENERAL MUNICIPAL LAW SECTION 50-e(5): AMELIORATING NEW YORK'S NOTICE OF CLAIM REQUIREMENTS I. Introduction A multitude of provisions scattered throughout New York's consoli- dated and unconsolidated laws require that plaintiffs serve "notice of claim" of their tort actions' on defendant public corporations. 2 New York General Municipal Law section 50-e governs the New York procedure for serving this notice of claim upon public corporations including when and upon whom service should be made, the form and contents of the notice of claim, and how notice of claim may be served.3 Compliance with the requirements of section 50-e is a condi- 1. TWENTY-FIRST ANN. REP. OF THE N.Y. JUDICIAL CONF. 286 (1976) [hereinafter cited as ANNUAL REPORT]. The most widely applicable of these provisions is GEN. MUN. LAW § 50-i(1), which provides in part: No action or special proceeding shall be prosecuted or maintained against a city, county, town, village, fire district or school district for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city, county, town, village, fire district or school district ...unless, (a) a notice of claim shall have been made and served ...in compliance with section fifty-e of this chapter .... N.Y. GEN. MUN. LAW§ 50-i(1) (McKinney 1977 & Supp. 1983-1984). Section 50-i is the most often applicable notice of claim provision because it applies to such a wide variety of public corporations. However, other specific public corporations, such as the New York City Health & Hospitals Corporation, have their own notice provi- sions. See N.Y. UNCONSOL. LAWS § 7401(2) (McKinney 1979). A complete listing of New York statutory provisions relating to notices of tort claims against public corpo- rations can be found in Graziano, Recommendations Relating to Section 50-e of the General Municipal Law and Related Statutes, TWENTY-FIRST ANN. REP. OF THE N.Y. JUDICIAL CONF. 358, 420-21 (1976). 2. N.Y. GEN. CONSTR. LAW § 66(1) (McKinney Supp. 1983-1984) defines a public corporation as a municipal corporation, district corporation or public benefit corporation. A municipal corporation as defined under this section "includes a county, city, town, village and school district." Id. § 66(2). A district corporation as defined under this section "includes any territorial division of the state, other than a municipal corporation, ...which possesses the power to contract indebtedness and levy taxes or benefit assessments upon real estate . I..." ld. § 66(3). A public benefit corporation as defined under this section "is a corporation organized to construct or operate a public improvement wholly or partly within the state, the profits from which inure to the benefit of this or other states, or to the people thereof." Id. § 66(4). 3. N.Y. CEN. MUN. LAW § 50-e(1-3) (McKinney 1977). A9 564 FORDHAM URBAN LAW JOURNAL [Vol. XII tion precedent to commencement of a tort action against a public corporation4 whenever such notice of claim is required by law.5 Subdivision five6 of General Municipal Law section 50-e is designed to mitigate the harshness of New York's statutory notice of claim requirements.7 Under subdivision five, the courts are granted broad, general authority to use their discretion to extend the time to serve notice of claim beyond the limit prescribed by General Municipal Law section 50-e(1)(a): ninety days after the cause of action arises. 9 The extension cannot exceed the statute of limitations for commence- 4. Cohen v. Pearl River Union Free Sch. Dist., 51 N.Y.2d 256, 264, 414 N.E.2d 639, 644, 434 N.Y.S.2d 138, 142 (1980); Colantuono v. Valley Cent. Sch. Dist., 90 Misc. 2d 918, 920, 396 N.Y.S.2d 590, 591 (Sup. Ct. Orange County 1977); Clark v. City of New York, 98 Misc. 2d 660, 661, 414 N.Y.S.2d 481, 483 (Civ. Ct. Kings County 1979). 5. See supra note 1. 6. N.Y. GEN. MUN. LAW § 50-e(5) (McKinney 1977) provides: Upon application, the court, in its discretion, may extend the time to serve notice of claim .... [T]he extension shall not exceed the time limited for the commencement of an action by the claimant against the public corpo- ration. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts con- stituting the claim within [90 days] or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations ... ; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits. Id. 7. See Beary v. City of Rye, 44 N.Y.2d 398, 411, 377 N.E.2d 453, 457, 406 N.Y.S.2d 9, 13 (1978); Weinzel v. County of Suffolk, 92 A.D.2d 545, 546, 459 N.Y.S.2d 112, 113 (2d Dep't 1983); Heiman v. City of New York, 85 A.D.2d 25, 26- 28, 447 N.Y.S.2d 158, 159-60 (1st Dep't 1982); Robb v. New York City Hous. Auth., 71 A.D.2d 1000, 1001, 420 N.Y.S.2d 291, 292 (2d Dep't 1979); Zeicker v. Town of Orchard Park, 70 A.D.2d 422, 425, 421 N.Y.S.2d 447, 449 (4th Dep't 1979); Segreto v. Town of Oyster Bay, 66 A.D.2d 796, 796, 410 N.Y.S.2d 898, 899 (2d Dep't 1978); Dickey v. County of Nassau, 65 A.D.2d 780, 781, 410 N.Y.S.2d 333, 335 (2d Dep't 1978); Matey v. Bethlehem Central Sch. Dist., 89 Misc. 2d 390, 394, 391 N.Y.S.2d 357, 360 (Sup. Ct. Albany County 1977), aff'd 63 A.D.2d 807, 405 N.Y.S.2d 156 (3d Dep't 1978); ANNUAL REPORT, supra note 1, at 287, 288; Farrell, 1976 Survey of N.Y. Law, 28 SYRACUSE L. REV. 379, 379 (1977). 8. See Beary, 44 N.Y.2d at 411, 377 N.E.2d at 457, 406 N.Y.S.2d at 13; ANNUAL REPORT, supra note 1, at 13. 9. See GEN. MUN. LAW § 50-e(5) (McKinney 1977). A10 NOTICE OF CLAIM ment of an action by the claimant against the public corporation. 10 Since the most widely applicable notice of claim provision has a one year and ninety day statute of limitations, the extension beyond the ninety day period usually cannot exceed one year." This Note will analyze the functions and malfunctions 2 of General Municipal Law section 50-e(5). Although subdivision five sets forth factors to guide the courts in using their discretion, the bounds of this discretion have not been explicitly delineated.' 3 This Note will rank the factors set forth in subdivision five according to their intended weight in court decisions, and will suggest a standard judicial ap- proach to subdivision five motions to extend the time to serve notice of claim. This approach would dispel the uncertainty that faces plain- tiffs' counsel when they move to extend or defendants' counsel when they raise as a defense the ninety day limit of section 50-e(1). Before outlining this proposal, the Note will discuss the history, purposes and intent behind section 50-e(5) and will analyze New York case law involving section 50-e(5). II. History Effective September 1, 1976, General Municipal Law section 50-e was amended, 14 resulting in a total overhaul of the statute. 15 The amendment resulted in particularly significant changes to subdivision five, the ameliorative provision.' Prior to the amendment, a court could grant an extension only if certain "excuses" were available: plaintiffs infancy, plaintiff's mental or physical incapacity, or plain- tiffs justifiable reliance upon settlement representations. 7 Under the present form of section 50-e(5), in addition to the above three grounds for extension, the court shall consider, in particular, whether the public corpora- tion or its attorney or its insurance carrier acquired actual knowl- 10. Id. 11. In all suits arising under GEN. MUN. LAW § 50-i, the most widely -applicable notice of claim provision (set forth supra note 1), the statute of limitations is one year and 90 days, making the outside limit of the extension beyond the 90 day period one year. See D. SIEGAL, NEW YORK PRACTICE 33, n. 12 (1978). 12. See infra text section V. 13. Phillips v. City of New York, 98 Misc. 2d 1124, 1126, 415 N.Y.S.2d 349, 350 (Civ. Ct. Kings County 1979). 14. 1976 N.Y. Laws ch. 745, § 2. 15. Zeicker v. Town of Orchard Park, 70 A.D.2d 422, 424-25, 421 N.Y.S.2d 447, 448-49 (4th Dep't 1979). 16. See supra note 7 and accompanying text. 17. See 1959 N.Y. Laws ch. 814; ANNUAL REPORT, supra note 1, at 301. 1984] 565 A11 FORDHAM URBAN LAW JOURNAL the essential facts constituting the claim within [ninety days] or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including . . . whether the delay in serving notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits. 8 III. Purposes Behind Notice of Claim The functional purpose of New York's notice of claim requirements is to protect a public corporation against stale or unwarranted claims and to enable it to conduct timely and efficient investigations. 9 The New York Court of Appeals has stated that the primary purpose of section 50-e "is to give a municipality prompt notice of such claims so that investigation may be made before it is too late for [it] to be efficient. ' 20 Specifically, " '[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."' 2' Other jurisdic- tions, too, have posited that the purpose behind their notice of claim requirements is prompt and efficient investigation. 2 IV. Intent Behind the Amendment to Section 50-e(5) The amendment to section 50-e followed a recommendation by the New York Judicial Conference. 3 The Judicial Conference stated that 18. N.Y. GEN. MUN. LAW § 50-e(5) (McKinney 1977)[emphasis added]. 19. ANNUAL REPORT, supra note 1, at 286. 20. Winbush v. City of Mount Vernon, 306 N.Y. 327, 333, 118 N.E.2d 459, 462 (1959); see Graziano, Recommendations Relating to Section 50-e of the General Municipal Law and Related Statutes, TWENTY-FIRST ANN. REP. OF THE N.Y. JUDICIAL CONF. 358 (1976). Certain of Professor Graziano's recommendations were incorpo- rated into the Judicial Conference CPLR Advisory Committee's report, Which in turn formed the basis for the amendment to section 50-e. See ANNUAL REPORT, supra note 1, at 287. 21. Beary, 44 N.Y.2d at 412, 377 N.E.2d at 458, 406 N.Y.S.2d at 13 (quoting from ANNUAL REPORT, supra note 1, at 302; see Adkins v. City of New York, 43 N.Y.2d 346, 350, 372 N.E.2d 311, 312, 401 N.Y.S,2d 469, 471 (1977)). 22. See, e.g., Murray v. City of Milford, 380 F.2d 468, 473 (2d Cir. 1967) (applying Connecticut law); Newlan v. State, 96 Idaho 711, 714, 535 P.2d 1348, 1351 (1975); King v. Johnson, 47 Ill.2d 247, 250-51, 265 N.E.2d 874, 876 (1970); Jenkins v. Board of Educ., 303 Minn. 437, 441, 228 N.W.2d 265, 269 (1979); Marino v. City of Union City, 136 N.J. Super. 233, 235-36, 345 A.2d 374, 375 (1975); see also 18 E. MCQUILLAN, THE LAW OF MUNICIPAL CORPORATIONS § 53:153 (rev. 3d ed. & Supp. 1981) ("[p]rovisions as to notice of claim are enacted in furtherance of a public policy, and their object and purpose is to protect the municipality from the expense of needless litigation, give it an opportunity for investigation, and allow it to adjust differences and settle claims without suit"). 23. Beary, 44 N.Y.2d at 411, 377 N.E.2d at 457, 406 N.Y.S.2d at 13 (1978); Farrell, 1976 Survey of N.Y. Law, 28 SYRACUSE L. REV. 379, 379 (1977). [Vol. XII A12 NOTICE OF CLAIM the basic purpose of its statutory recommendations was to follow the suggestion of the Court of Appeals in Camarella v. East Irondequoit Central School Board24 to reconsider "the harsher aspects of section 50-e . . . 'in order that a more equitable balance may be achieved between a public corporation's reasonable need for prompt notifica- tion of claims against it and an injured party's interest in just compen- sation.' "25 The Judicial Conference sought to achieve this equitable balance by articulating the factors that should guide the court in permitting a late filing. 26 It intended to use the remedial amendments to render prior judicial decisions construing section 50-e rigidly and narrowly inapplicable. 27 The anticipated result of the amendments was to enable the courts to apply section 50-e more flexibly to achieve substantial justice. 28 Since the purpose of these remedial amendments was to mitigate the harshness of pre-amendment notice of claim deci- sions, the Judicial Conference did not intend to affect statutes which provided for a longer filing period than ninety days. 29 The case law and comments addressing section 50-e's amendment overwhelmingly acknowledge the remedial intent behind the amend- ment. 30 It is clear from legislative history, 3' case law, 32 and commen- tators33 that any suggested approach to section 50-e(5) motions to 24. 34 N.Y.2d 139, 313 N.E.2d 29, 356 N.Y.S.2d 553 (1974). 25. ANNUAL REPORT, supra note 1, at 287-88 (quoting Camarella v. East Ironde- quoit Cent. Sch. Bd., 34 N.Y.2d 139, 142-43, 313 N.E.2d 29, 30, 356 N.Y.S.2d 553, 555 (1974). 26. ANNUAL REPORT, supra note 1, at 288. 27. id. 28. Id. 29. Id. 30. See cases cited supra note 7 and accompanying text; State of New York, Office of Court Admin., Memorandum in Support of Assembly Bill No. 10346 (May 20, 1976) (included in Bill Jacket to 1976 N.Y. Laws ch. 745); N.Y. State Consumer Protection Bd., Memorandum Re: Assembly Bill 10346 (May 27, 1976) (included in Bill Jacket to 1976 N.Y. Laws ch. 745); Law Revision Comm., Memorandum Relat- ing to Assembly Bill No. 10346 (May 28, 1976) (included in Bill Jacket to 1976 N.Y. Laws ch. 745); City of New York, Office of the Mayor, Memorandum Recommend- ing Disapproval of Assembly Bill No. 10346 (June 3, 1976) (included in Bill Jacket to 1976 N.Y. Laws ch. 745); Graziano, Recommendations Relating to section 50-e of the General Municipal Law and Related Statutes, TWENTY-FIRST ANN. REP. OF THE N.Y. JUDICIAL CONF. 358 (1976); NOTE, The Survey of New York Practice, 53 ST. JOHN'S L. REV. 107, 159 (1978); Note, The Survey of New York Practice, 51 ST. JOHN'S L. REV. 201, 225 (1976); N.Y.L.J. April 16, 1973, at 5, col. 4 (proposing amelioration of section 50-e). 31. See supra notes 7 & 30. 32. See supra notes 7 & 30. 33. See supra notes 7 & 30. 1984] A13 FORDHAM URBAN LAW JOURNAL extend must consider the remedial intent of the statute. In the words of the Court of Appeals in Beary v. City of Rye34 "the flexibility introduced by the amendment appears designed to encourage greater fairness .... 35 V. New York Case Law Section 50-e of New York's General Municipal Law has been amended 36 to add several factors for the courts to consider when deciding a motion to serve a late notice of claim, or a motion to deem a notice of claim to have been timely served. These added factors include: (1) "all other relevant facts and circumstances," (2) "whether the public corporation ... acquired actual knowledge of the essential facts constituting the claim within [ninety days]" and, (3) "whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits. ' 37 This section of the Note will analyze New York case law to ascertain whether each of these factors has been treated by the various judicial departments in accordance with the remedial intent 3 behind the amendment. A. Knowledge of the Essential Facts Constituting the Claim Within Ninety Days or Within a Reasonable Time Thereafter The courts are directed by section 50-e(5) to pay particular atten- tion to whether the public corporation, its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within ninety days or within a reasonable time thereafter. 39 The New York Court of Appeals has interpreted this requirement to mean knowledge of the underlying facts as distinguished from knowl- edge that a tort claim will be prosecuted. 40 This view has been widely 34. 44 N.Y.2d 398, 377 N.E.2d 453, 406 N.Y.S.2d 9 (1978). 35. Id. at 412, 377 N.E.2d at 458, 406 N.Y.S.2d at 13. 36. See supra notes 14 & 15 and accompanying text. 37. See supra note 6 for complete text of section 50-e(5). 38. See supra notes 7 & 30 and accompanying text. 39. See supra note 6 for complete text of section 50-e(5). 40. See Beary, 44 N.Y.2d at 412-13, 377 N.E.2d at 458, 406 N.Y.S.2d at 14. The Beary court stated: [W]e consider it significant that the amendment expressly directs that whether the public corporation did or did not have knowledge be ac- corded great weight. Obviously, this is intended to meet legislative con- cern for assuring reasonably prompt investigative opportunity under the amendment. For even when a public body has had no formal alert that a [Vol. XII A14 NOTICE OF CLAIM adopted by New York's lower courts.4' However, the terms "actual knowledge" and "a reasonable time thereafter" 42 have been subject to various interpretations by the different judicial departments.4 3 Where a defendant public corporation has actual knowledge of the claim itself within the ninety day period, it is clear that a late filing will be permitted. 44 In King v. City of New York, 45 the defendant city had actual notice of plaintiff's claim within hours after it accrued. 4 6 The plaintiff in this case was accidentally shot in the face by a police officer who was in pursuit of an alleged criminal..4 7 The plaintiff was questioned by both a police captain and an assistant district attorney just hours after the shooting. 48 Notice of claim was filed one day late due to a mistake in computing the ninety day period, but the defend- ant did not raise the late filing as a defense until after the statutory period of limitations on the tort action had lapsed. 49 The court held that, given the actual knowledge of the claim and the inaction of the City in not raising the defense until after the period of limitations had lapsed, (1) the City had waived its right to assert that the plaintiff was barred from applying for an extension after the statute of limitations had expired and (2) it was an abuse of discretion for special term to have denied the plaintiff's request that the notice of claim be deemed claim in fact will be brought, actual knowledge of the facts within 90 days or shortly thereafter makes it unlikely that prejudice will flow from a delay in filing that does not reach beyond the statutory period of a year. Id. 41. See Raczy v. City of Westchester, 95 A.D.2d 854, 854, 464 N.Y.S.2d 223, 224 (2d Dep't 1983); Lucas v. City of New York, 91 A.D.2d 637, 637, 456 N.Y.S.2d 816, 817 (2d Dep't 1982); Whitehead v. Centerville Fire Dist., 90 A.D.2d 655, 655-56, 456 N.Y.S.2d 450, 451 (3d Dep't 1982); Somma v. City of New York, 81 A.D.2d 889, 890, 439 N.Y.S.2d 50, 51 (2d Dept 1981); Jakubowicz v. Dunkirk Urban Renewal Agency, Inc., 75 A.D.2d 1019, 1020, 429 N.Y.S.2d 333, 334 (4th Dep't 1980); Hubbard v. County of Suffolk, 65 A.D.2d 567, 568, 409 N.Y.S.2d 24, 24 (2d Dep't 1978); Wemett v. County of Onondaga, 64 A.D.2d 1025, 1026, 409 N.Y.S.2d 312, 314 (4th Dep't 1978); Van Horn v. Village of New Paltz, 57 A.D.2d 642, 643, 393 N.Y.S.2d 218, 219 (3d Dep't 1977). 42. See supra note 6 for complete text of section 50-e(5). 43. See infra notes 44 to 111 and accompanying text. 44. King v. City of New York, 90 A.D.2d 714, 715, 452 N.Y.S.2d 607, 608-09. (1st Dep't 1982); see Gelles v. New York City Hous. Auth., 87 A.D.2d 757, 758, 449 N.Y.S.2d 36, 36 (1st Dep't 1982) (housing department report was filed and claims investigator sent to site of accident within 90 days, thereby proving actual knowledge of essential facts constituting claim, and of claim itself). 45. 90 A.D.2d 714, 452 N.Y.S.2d 607 (1st Dep't 1982). 46. Id. at 715, 452 N.Y.S.2d at 608. 47. Id. 48. Id. 49. Id. 1984] A15 FORDHAM URBAN LAW JOURNAL timely served. 50 It is not essential that the defendant public corpora- tion be afforded actual knowledge of the claim itself; rather, actual knowledge of the essential facts constituting the claim is sufficient under the language of section 50-e(5). 5 1 Such knowledge may be acquired within ninety days or within a reasonable time thereafter. 52 1. Reasonable Time New York's judicial departments have consistently emphasized the importance of actual knowledge of the essential facts constituting the claim acquired after the ninety day period, but within a reasonable time thereafter. In Heiman v. City of New York, 53 the Appellate Division for the First Department stated that the reasonableness of the delay depends upon the circumstances, and that it was within the court's broad discretion under section 50-e(5) to find that notice three and one-half months after the expiration of the ninety day period was within a reasonable time. 54 In Centelles v. New York City Health & Hospitals Corp. 55 the Appellate Division for the Second Department unanimously modified a supreme court decision denying plaintiff's application for leave to serve a late notice of claim. In this case a plaintiff applied for leave to serve a notice of claim only twelve days beyond the statutory ninety day period. Such a delay was held to be "clearly" within a reasonable time after the expiration of the ninety day limitation. 56 Numerous other Second Department cases have considered actual knowledge of the essential facts constituting the claim that is acquired after the ninety day period has lapsed, and even as long as five months late, to be determinative in favor of granting the application to file a late notice of claim .5 50. Id. at 715-16, 452 N.Y.S.2d at 608-09. 51. See supra note 40 and accompanying text. 52. N.Y. GEN. MUN. LAW § 50-e(5) (MeKinney 1977). 53. 85 A.D.2d 25, 447 N.Y.S.2d 158 (1st Dep't 1982). 54. Id. at 29, 447 N.Y.S.2d at 161 (plaintiff fell on sidewalk, was hospitalized periodically over a six month period, and filed notice shortly after his discharge from hospital). 55. 84 A.D.2d 826, 444 N.Y.S.2d 193 (2d Dep't 1981). 56. Id. at 826, 444 N.Y.S.2d at 194. 57. See, e.g., Monge v. City of New York Dep't of Social Servs., 95 A.D.2d 848, 848, 464 N.Y.S.2d 207, 208 (2d Dep't 1983) (reversing supreme court's denial of leave to serve late notice of claim and holding that 5 months beyond 90 day period is within reasonable time); Segreto v. Town of Oyster Bay, 66 A.D.2d 796, 796-97, 410 N.Y.S.2d 898, 899 (2d Dep't 1978) (reversing supreme court order denying applica- tion to serve late notice of claim, and holding that "[t]he respondent had actual [Vol. XII A16 NOTICE OF CLAIM In Hutchins v. Village of Tupper Lake Housing Authority, 5 the Appellate Division for the Third Department held that ten days be- yond the ninety day period can be considered "within a reasonable time." In a later Third Department case, Beatty v. County of Sara- toga, 5 9 the same court modified a denial of a motion to extend, holding that: although Saratoga County maintains it did not become aware of the essential facts constituting the claim until plaintiff sought the instant relief, we do not regard that circumstance as a sufficient basis to warrant the denial of her motion. The amended statute directs attention to the question of whether the municipality gained such knowledge within ninety days of the incident "or within a reasonable time thereafter".... Here, the nature of the claim was made known within four months after the expiration of the ninety day period. We conclude that this was a reasonable time, particu- larly since it is not even contended that there has been any subse- quent change60 in the conditions of the highway which might hinder the investigation or defense of this action. 6 1 In Kornowski v. County of Erie,12 the Appellate Division for the Fourth Department affirmed the granting of an application to extend the time to file notice of claim on the grounds that (1) plaintiff moved to extend less than three weeks late and (2) defendants had'suffered no prejudice as a result of plaintiff's delay in serving notice of claim. Prior to that decision, in Snyder v. City of Utica, 3 the same court reversed an unreported Special Term decision which denied the claimant's motion to extend. The appellate court granted the exten- sion because (1) service of notice was only four days late and (2) no prejudice was shown. The Fourth Department implied in these cases that, although late, the notice of claim was served and knowledge was therefore acquired within a reasonable time. In an earlier case with similar facts, the Fourth Department more correctly explicated the knowledge of the essential facts at the time the motion was returnable (61 days after the 90 day period) which is clearly within a reasonable time after the expiration of the 90 day limitation"); Dickey v. County of Nassau, 65 A.D.2d 780, 781, 410 N.Y.S.2d 333, 335 (2d Dep't 1978) (17 days late is within reasonable time). 58. 72 A.D.2d 875, 421 N.Y.S.2d 946 (3d Dep't 1979). 59. 74 A.D.2d 662, 424 N.Y.S.2d 772 (3d Dep't 1980). 60. Subsequent change of the scene of the occurrence might well result in sub- stantial prejudice to the defendant in maintaining a defense. See inJra note 137 and accompanying text. 61. 74 A.D.2d at 663, 424 N.Y.S.2d at 773. 62. 75 A.D.2d 1019, 429 N.Y.S.2d 137 (4th Dep't 1980). 63. 69 A.D.2d 991, 416 N.Y.S.2d 126 (4th Dep't 1979). 1984] A17 FORDHAM URBAN LAW JOURNAL reasons for their decision."4 The court held: "[h]ere claimant served her notice of claim within 35 days after expiration of the 90 day statutory period ... [and] we find that the filing was effected within a reasonable time after the expiration of the statutory period. 6 5 2. Actual Knowledge A court must determine not only what constitutes a reasonable time, but also what constitutes actual knowledge.66 Although delay in filing may be inexcusable, the defendant's actual knowledge of the essential facts constituting the claim will, in the absence of substantial prejudice, weigh heavily in favor of extending the time for service of notice of claim. 7 It is therefore important to delineate some of the circumstances under which New York courts have or have not found such actual knowledge. As a threshold matter, it should be noted that a valid notice of claim, by definition, affords actual knowledge of the facts constituting the claim and of the claim itself.68 When a plaintiff serves a late notice of claim and then moves to have that notice be deemed timely served, the next question should be whether the notice of claim was served within a reasonable time after the ninety day period. 6 9 In one First Department case, a hearing held soon after an automo- bile accident was held to have provided the defendant with actual knowledge of the essential facts constituting the claim.7 0 In another case in that department, the existence of a Housing Department re- port concerning the alleged occurrence was held to prove actual knowledge of essential facts. 71 In a Second Department case the court held that a partial description of an accident sent to the defendant city will not constitute actual knowledge because it did not contain all 64. Rippe v. City of Rochester, 57 A.D.2d 723, 395 N.Y.S.2d 556 (4th Dep't 1977). 65. Id. at 723, 395 N.Y.S.2d at 557. 66. See N.Y. GEN. MUN. LAW § 50-e(5). 67. See Hubbard v. County of Suffolk, 65 A.D.2d 567, 568, 409 N.Y.S.2d 24, 24 (2d Dept 1978). See cases cited infra note 108. 68. See N.Y. GEN. MUN. LAW § 50-e(2) for the required content of a valid notice of claim. 69. See Heiman v. City of New York, 85 A.D.2d 25, 28, 447 N.Y.S.2d 158, 160 (1st Dep't 1982). 70. See King v. City of New York, 90 A.D.2d 714, 715, 452 N.Y.S.2d 607, 608-09 (1st Dep't ],982) (court held that defendant had actual knowledge of claim itself). See supra note 44. 71. See Gelles v. New York City Hous. Auth., 87 A.D.2d 757, 758, 449 N.Y.S.2d 36, 36 (1st Dep't 1982). [Vol. XII A18 1984] NOTICE OF CLAIM essential facts constituting the claim. 72 Similarly, in another case in the Second Department, a police report which did not set forth the facts constituting the claim was deemed insufficient to provide the defendant with actual knowledge. 7 3 Communication of the essential facts constituting the claim by the defendant to the plaintiff was held to prove actual knowledge of those facts.7 4 In Matter of Somma v. City of New York,7 5 an injured sanita- tion worker filed a line of duty injury report with the Department of Sanitation. 76 The court held that the City of New York was thereby provided with actual knowledge of the essential facts constituting the claim.7 7 Similarly, a police report of an accident in which the police were involved and the plaintiff, a policeman, was injured afforded the defendant city with actual knowledge of essential facts.78 In a malpractice action, the facts that the doctors were present and per- formed the acts in question and that the hospital maintained records of the occurrence were considered sufficient to furnish defendants with "actual knowledge of the essential facts constituting the malprac- tice claim. '79 The defendant board of education was considered to have actual knowledge where its supervisory employees were present at an accident and assisted the plaintiff. 80 Thus, where high-level employees are present at the occurrence which engenders the lawsuit, their knowledge will be imputed to the defendant employer. 8n ' 72. See Matter of Raczy v. County of Westchester, 95 A.D.2d 854, 854, 464 N.Y.S.2d 223, 224 (2d Dep't 1983). 73. See Fox v. City of New York, 91 A.D.2d 624, 625, 456 N.Y.S.2d 806, 807 (2d Dep't 1982) ("police report merely described the collision ... and made no connec- tion between the accident and the handling of the oil spill by the responsible city agencies"); accord Morris v. County of Suffolk, 88 A.D.2d 956, 956, 451 N.Y.S.2d 448, 449 (2d Dep't 1982) (police report did not furnish actual or constructive knowl- edge of claim of defective road maintainance where it did not mention road condi- tion). 74. Williams v. New York City Health & Hosps. Corp., 93 A.D.2d 885, 886, 461 N.Y.S.2d 411, 412 (2d Dep't 1983). 75. 81 A.D.2d 889, 439 N.Y.S.2d 50 (2d Dep't 1981). 76. Id. at 889, 439 N.Y.S.2d at 51. 77. Id. at 890, 439 N.Y.S.2d at 51. 78. See Lucas v. City of New York, 91 A.D.2d 637, 637, 456 N.Y.S.2d 816, 817 (2d Dep't 1982). 79. See Newson v. City of New York, 87 A.D.2d 630, 631, 448 N.Y.S.2d 224, 225 (2d Dep't 1982). 80. See Mestel v. Board of Educ., 90 A.D.2d 809, 809, 455 N.Y.S.2d 667, 667 (2d Dep't 1982) (plaintiff had also sent notorized report of incident to defendant one week after incident). 81. See supra notes 79 & 80 and accompanying text for cases in which knowledge of employees was imputed to their employers. A19 FORDHAM URBAN LAW JOURNAL Similarly, in the Third Department, the presence of the defendant's employees at the occurrence which engendered the tort claim is likely to constitute actual knowledge of the essential facts on the part of the defendant. In Whitehead v. Centerville Fire District,82 the presence of firemen at an accident involving a fire engine and the plaintiff's automobile afforded the defendant fire district actual knowledge of the essential facts constituting the claim.83 Similarly, the presence of the school principal and superintendent at the scene of a bus accident was held to be determinative on the issue of whether actual knowl- edge existed.8 4 The defendant's conduct after the occurrence can show that it has actual knowledge. In Van Horn v. Village of New Paltz,85 the fact that disciplinary proceedings were commenced against allegedly neg- ligent police officers shortly after a shooting proved that the defendant city had actual knowledge of the essential facts constituting the claim. 86 Unlike the Third Department,8 7 the Fourth Department has held that knowledge of school officials will not be imputed to the defend- ant school district.88 However, the Fourth Department, like the other three departments, has found actual knowledge to exist in a variety of circumstances, including one case in which it held that newspaper accounts of an accident afforded the defendant public corporation actual knowledge of the essential facts constituting the claim.89 Like 82. 90 A.D.2d 655, 456 N.Y.S.2d 450 (3d Dep't 1982). 83. Id. at 655-56, 456 N.Y.S.2d at 451. 84. See DeGroff v. Bethlehem Cent. Sch. Dist., 92 A.D.2d 702, 702, 460 N.Y.S.2d 630, 631 (3d Dep't 1983). 85. 57 A.D.2d 642, 393 N.Y.S.2d 218 (3d Dep't 1977). 86. Id. at 643, 393 N.Y.S.2d at 219. 87. See supra note 84 and accompanying text. 88. See Persi v. Churcheville-Chili Cent. Sch. Dist., 72 A.D.2d 946, 946-47, 422 N.Y.S.2d 232, 233 (4th Dep't 1979), aJJ'd appeal dismissed, 52 N.Y.2d 79, 419 N.E.2d 1078, 438 N.Y.S.2d 79 (1981)(reversing supreme court order granting per- mission to file late notice). However, a sharp dissent aptly pointed out that: The legislature in amending General Municipal Law § 50-e (1976) con- ferred upon the court broad discretion to grant leave in cases where the public corporation had knowledge of the incident .... In this case the appellant does not dispute the fact that the school officers were witnesses to the incident and were the parties who notified the parents. Therefore, since appellant had timely notice of the essential facts constituting the claim and an opportunity to investigate the claim's underlying circum- stances and will not be substantially prejudiced by a late filing, it was proper for Special Term . . . to grant . . . the application. Id. at 447, 422 N.Y.S.2d at 233. 89. See Jakubowicz v. Dunkirk Urban Renewal Agency, Inc., 75 A.D.2d 1019, 1020, 429 N.Y.S.2d 333, 334 (4th Dep't 1980). [Vol. XII A20 NOTICE OF CLAIM the other departments, the Fourth Department weighs such actual knowledge heavily in its decision to grant claimants' motions to ex- tend ° 3. Cases Which Exceed the Bounds of Discretion Under Section 50-e Some courts extend their discretion by going beyond the usual 50- e(5) analysis and examining the merits of the plaintiff's case. For example, in Goodson v. New York City Transit Authority,9' the First Department reversed, as an abuse of discretion, an order of the su- preme court granting the claimant's motion for leave to serve a late notice of claim. 92 The claimant alleged that she was injured by step- ping into a depression on a platform at the Seventh Avenue subway station and that she was aided by a uniformed Transit Authority (T.A.) employee . 3 However, neither the name of this employee nor any other identification of him was furnished to the court. 94 The court, therefore, determined that the T.A. was not afforded actual knowledge of the essential facts constituting the claim by the actions of this phantom employee.9 5 The court also determined that neither the late notice of claim nor the moving papers gave the T.A. sufficient facts to have allowed them a chance to investigate. 96 The court, 90. See Ziecker v. Town of Orchard Park, 70 A.D.2d 422, 428, 421 N.Y.S.2d 447, 451, (4th Dep't 1979); Wemett v. County of Onondaga, 64 A.D.2d 1025, 1026, 409 N.Y.S.2d 312, 314 (4th Dep't 1978). 91. 66 A.D.2d 675, 410 N.Y.S.2d 855 (1st Dep't 1978). 92. Id. at 675, 410 N.Y.S.2d at 856. 93. Id. at 675, 410 N.Y.S.2d at 855. 94. Id. 95. Id. 96. Id. at 675, 410 N.Y.S.2d at 856 ("[t]he location of the accident has not been specified, other than the general statement that the accident occurred within the station on the platform at the bottom of the stairway leading down to the Seventh Avenue IRT uptown trains . . . on the first step onto the platform off the stairway"). Whether the above-quoted information is sufficient to supply actual knowledge of the underlying facts presents a factual question. The First Department in Goodson, at least impliedly, determined that Special Term could not have reached an affirma- tive conclusion. It seems more likely that the court has allowed its determination of the merits of the claimant's case to interfere with its judgment on the above issue. It ended its opinion by stating: "Nor has claimant submitted any substantiating proof to establish a causal relationship between the injuries . . . and the alleged occurrence." Id. While such a determination may be allowable under a broad view of the court's discretion under section 50-e(5), courts should be careful not to allow their judgments as to the merits of claimants' cases to interfere with their determination of the explicitly delineated factor of whether actual knowledge was afforded the defendant public corporation. 1984] A21 FORDHAM URBAN LAW JOURNAL however, overstepped the bounds of its discretion by allowing its determination of the merits of the plaintiff's case to sway its decision on whether actual knowledge existed.9 7 However, even if the court had determined that such notice was sufficient, it would then have had to determine that the notice was received "within a reasonable time" after the ninety day period in order to grant the plaintiff's motion.9 8 In this instance, notice was received two and one-half months beyond the ninety day period. 9" One other decision must be noted because, although its holding is incorrect, it has never been overruled. In Phillips v. City of New York, 100 the plaintiff suffered multiple fractures in both arms resulting from a fall on a street which, allegedly, was maintained negligently. The plaintiff required nursing care for almost two months. Due to factors including pain, difficulty in carrying on her affairs and bad weather, she filed her notice of claim thirteen days late.' 0' The court held that, in the absence of compelling circumstances, parties should be bound by the requirements of section 50-e(5). Since the plaintiff was not completely immobilized during the final weeks of the ninety day period, such compelling circumstances did not exist. 10 2 This court's analysis and decision is clearly incorrect. No requirement of complete incapacitation for ninety days exists under the amended statute.1 3 The courts are directed to pay particular attention to whether the defendant possesses actual knowledge within a reasonable time after the ninety day period. 0 4 Here, a notice of claim which, by definition, affords actual knowledge, was filed thirteen days late. The court focused on whether notice to the plaintiff's employer, New York City, of the reasons for the plaintiff's lengthy absence would constitute actual knowledge to the defendant. 0 5 The court decided that such knowledge was not present, without addressing whether thirteen days was within a reasonable time given the circumstances. 0 6 In this case, the plaintiff was incapacitated for much of the ninety day period, the 97. See supra note 96 for a discussion of how the court in Goodman is overstep- ping the bounds of discretion. 98. See supra note 6 for complete text of section 50-e(5). 99. 60 A.D.2d at 675, 410 N.Y.S.2d at 856. 100. 98 Misc.2d 1124, 415 N.Y.S.2d 349 (Civ. Ct. Kings County 1979). 101. Id. at 1125, 415 N.Y.S.2d at 350. For further criticism of Phillips, see infra notes 149-51 and accompanying text. 102. Id. at 1126, 415 N.Y.S.2d at 351. 103. See supra note 6 for complete text of section 50-e(5). 104. See supra note 6 for complete text of section 50-e(5). 105. 98 Misc. 2d at 1126, 415 N.Y.S.2d at 351. 106. Id. [Vol. XII A22 1984] NOTICE OF CLAIM 577 defendant received actual knowledge within thirteen days after the ninety day period and there was no showing of prejudice to the defendant.10 7 This is the type of case where section 50-e(5) should be invoked to avoid the harsh results engendered under the pre-amend- ment form of 50-e(5).10 Phillips compares unfavorably with cases which emphasize the sufficiency of actual knowledge acquired within a reasonable time beyond the ninety day period.0 9 The Phillips decision illustrates both a trial court's mishandling of a 50-e(5) motion and the developing problem of inconsistency in trial level decisions. The many unreported trial level decisions that have been reversed to allow extensions"0 demonstrate the need for trial level courts to follow more strictly the higher courts' liberal construc- tion of section 50-e(5) to allow plaintiffs to exercise their rights"' without unnecessary appeal costs and concomitant delay. 107. The court in Phillips held that any delay beyond 90 days is ipso facto prejudicial. Id. at 1127, 415 N.Y.S.2d at 351. This is clearly an improper interpreta- tion of section 50-e(5). See infra note 144 and accompanying text. To hold that delay beyond 90 days is ipso facto prejudicial is nonsensical. Delay beyond 90 days in section 50-e(5) motions to extend will always exist. One of the primary considerations under this section is whether the public corporation will be substantially prejudiced. If the corporation were considered to be substantially prejudiced automatically because of the delay, there would be no need for the substantial prejudice factor to be in section 50-e(5). 108. See Camarella v. East Irondequoit Cent. Sch. Bd., 34 N.Y.2d 139, 142-43, 313 N.E.2d 29, 30, 356 N.Y.S.2d 553; See supra notes 25 & 28 and accompanying text. 109. See cases cited and discussed supra notes 52-65 and accompanying text. 110. See Weinzel v. County of Suffolk, 92 A.D.2d 545, 459 N.Y.S.2d 112 (2d Dep't 1983); Ansaldo v. City of New York, 92 A.D.2d 557, 459 N.Y.S.2d 303 (2d Dep't 1983); Lucas v. City of New York, 91 A.D.2d 637, 456 N.Y.S.2d 817 (2d Dep't 1982); King v. City of New York, 90 A.D.2d 714, 452 N.Y.S.2d 607 (1st Dep't 1982); Gelles v. New York City Hous. Auth., 87 A.D.2d 757, 449 N.Y.S.2d 36 (1st Dep't 1982); In re Alessi, 85 A.D.2d 725, 445 N.Y.S.2d 817 (2d Dep't 1981); Centelles v. New York City Health & Hosps. Corp., 84 A.D.2d 826, 444 N.Y.S.2d 193 (2d Dep't 1981); Beatty v. County of Saratoga, 74 A.D.2d 662, 424 N.Y.S.2d 772 (3d Dep't 1980); Snyder v. City of Utica, 69 A.D.2d 991, 416 N.Y.S.2d 126 (4th Dep't 1979); Segreto v. Town of Oyster Bay, 66 A.D.2d 796, 410 N.Y.S.2d 899 (2d Dep't 1978); Wemett v. County of Onondaga, 64 A.D.2d 1025, 409 N.Y.S.2d 312 (4th Dep't 1978). ill. [S]ince its amendment, subdivision 5 of section 50-e "is remedial in nature in that it was the intention to relieve some of the hardship incurred under the prior statute and, as such, is to be liberally construed." No longer need there be the harsh results encountered under the former section where unfortunate plaintiffs were forever foreclosed from the courts merely be- cause of a harmless error . . .. Robb v. New York City Hous. Auth., 71 A.D.2d 1000, 1001, 420 N.Y.S.2d 291, 292 (2d Dep't 1979) (quoting Matey v. Bethlehem Cent. Sch. Dist., 89 Misc. 2d 390, 394, A23 FORDHAM URBAN LAW JOURNAL [Vol. XII B. Substantial Prejudice in Maintaining a Defense on the Merits Section 50-e(5) of the General Municipal Law explicitly states that courts deciding motions to permit late service of notice should con- sider whether the public corporation will be substantially prejudiced in maintaining a defense on the merits." 2 The existence or non- existence of substantial prejudice has been termed one of the "two critical factors"'"13 for courts to consider in deciding section 50-e(5) motions. Virtually all of the case law discusses the substantial preju- dice factor, giving it weight equal to the actual knowledge factor." 4 The factors of substantial prejudice and actual knowledge are, per- haps, so significant 15 because they are closely related to each other" 6 and to the fundamental purpose of notice of claim requirements: enabling a public corporation to conduct an efficient investigation." 7 In fact, it appears that the importance of actual knowledge of essen- tial facts is that it generally coincides with a lack of substantial prejudice. Where there is actual knowledge and a corresponding lack 391 N.Y.S.2d 357, 360 (Sup. Ct. Albany County 1977), afJ'd, 63 A.D.2d 807, 405 N.Y.S.2d 156 (3d Dep't 1978)). 112. See supra note 6. 113. Lucas v. City of New York, 91 A.D.2d 637, 637, 456 N.Y.S.2d 816, 817 (2d Dep't 1982) (other factor is actual knowledge of essential facts). 114. See supra note 109 and accompanying text. See also Williams v. New York City Health & Hosps. Corp., 93 A.D.2d 885, 886, 461 N.Y.S.2d 411, 412 (2d Dep't 1983); Lucas, 91 A.D.2d at 637, 456 N.Y.S.2d at 817; Whitehead v. Centerville Fire Dist., 90 A.D.2d 655, 656, 456 N.Y.S.2d 450, 451 (3d Dep't 1982); King v. City of New York, 90 A.D.2d 714, 715, 452 N.Y.S.2d 607, 608-09 (1st Dep't 1982); Mestel v. Board of Educ., 90 A.D.2d 809, 809, 455 N.Y.S.2d 667, 667 (2d Dep't 1982); Somma v. City of New York, 81 A.D.2d 889, 889-90, 439 N.Y.S.2d 50, 51 (2d Dep't 1981); Hutchins v. Village of Tupper Lake Hous. Auth., 72 A.D.2d 875, 875, 421 N.Y.S.2d 946, 946 (3d Dep't 1979); Segreto v. Town of Oyster Bay, 66 A.D.2d 796, 796-97, 410 N.Y.S.2d 898, 899 (2d Dep't 1978); Hubbard v. County of Suffolk, 65 A.D.2d 567, 567-68, 409 N.Y.S.2d 24, 24-25 (2d Dep't 1978); Wemett v. County of Onon- daga, 64 A.D.2d 1025, 1026, 409 N.Y.S.2d 312, 314 (4th Dep't 1982); Van Horn v. Village of New Paltz, 57 A.D.2d 642, 643, 393 N.Y.S.2d 218, 219 (3d Dep't 1977). 115. See, e.g., Palazzo v. City of New York, 444 F. Supp. 1089, 1092 (E.D.N.Y. 1978). "While the question of the public corporation's knowledge of the facts constituting the plaintiff's claim had played a part in court decisions applying the pre-1976 statute as to whether to allow a late notice of claim ... the amended statute appears to elevate that factor to a level of significance that it did not have under the pre-1976 statute." Id. Despite lack of actual knowledge, other factors, including lack of substantial prejudice, warranted granting plaintiff's application to file notice of claim nunc pro tunc. Id. 116. Where there is actual knowledge of essential facts, there will generally be a lack of substantial prejudice. See supra cases cited in note 114. 117. See supra notes 19-24. A24 NOTICE OF CLAIM of substantial prejudice in preparing a defense on the merits, the investigatory purpose behind requiring notice of claim is not frus- trated. Therefore, actual knowledge should be subordinate to the factor of substantial prejudice in a court's decision on a 50-e(5) mo- tion. If the defendant shows that he will be substantially prejudiced in maintaining a defense on the merits, the extension generally will be denied. In Tanco v. New York City Housing Authority,"8 the First Department held that an eleven month delay in reporting an accident allegedly due to a defective staircase would substantially prejudice the defendants in investigating the accident. 1 9 In Heather v. County of Rennselaer, 20 a ten month delay in filing was found to be deleterious to the defendant public corporation's ability to conduct an investiga- tion and resulted in a finding of substantial prejudice by the Third Department.' 21 Both Tanco and Heather illustrate the relationship between actual knowledge and substantial prejudice. In both cases, the absence of knowledge of the essential facts underlying the claim resulted in substantial prejudice. 1. Proving Substantial Prejudice Proving substantial prejudice is a difficult burden for the defend- ant. 22 The Fourth Department has held that a public corporation must make more than a mere conclusory allegation of prejudice for the court to find that the corporation will be substantially preju- diced. 23 In Wemett v. County of Onondaga,124 the appellate division reversed the supreme court and held that the county's claim of preju- dice was specious. The county had claimed prejudice merely because of the delay, but did not attempt to avoid prejudice by physically examining the injured plaintiff when it finally did receive notice. 125 In Snyder v. City of Utica, 26 a four day delay in filing did not prevent a finding of a clear lack of prejudice. 27 A finding that no substantial prejudice exists may, by itself, be sufficient grounds to grant the 118. 84 A.D.2d 501, 443 N.Y.S.2d 66 (1st Dep't 1981). 119. Id. at 501, 443 N.Y.S.2d at 67. 120. 88 A.D.2d 718, 451 N.Y.S.2d 283 (3d Dep't 1982). 121. Id. at 718, 451 N.Y.S.2d at 284. 122. See Farrell Civil Practice, 28 SYRACUSE L. REV. 379, 383 (1977). 123. See Jakubowicz v. Dunkirk Urban Renewal Agency, Inc., 75 A.D.2d 1019, 1020, 429 N.Y.S.2d 333, 334 (4th Dep't 1980). 124. 64 A.D.2d 1025, 409 N.Y.S.2d 312 (4th Dep't 1978). 125. Id. at 1026, 409 N.Y.S.2d at 314. 126. 69 A.D.2d 991, 416 N.Y.S.2d 126 (4th Dep't 1979). 127. Id. at 992, 416 N.Y.S.2d at 127. 1984] A25 FORDHAM URBAN LAW JOURNAL extension. 2 8 Similarly, the Third Department has held that substan- tial prejudice was not proved where the defendant claimed prejudice based on possible memory loss six years after an occurrence engender- ing a tort claim.129 In Beatty v. County of Saratoga,130 the court held that, where the nature of the claim was known within four months after the occurrence and there had been no subsequent change in the condition of the highway, "[it failed] to see how the County of Sara- toga will be made to suffer any prejudice as a result of this brief delay except, perhaps that the pertinent events might not be remembered as well by some of the witnesses."'' Where there is no "demonstrable prejudice . . . tardy filing is hardly of moment."'13 2 If the defendant can "meet the alleged charges," there will not be a finding of substan- tial prejudice. 33 The Second Department is also reluctant to find substantial preju- dice. Access to hospital records will remove the possibility of substan- tial prejudice to a defendant public corporation in a medical malprac- tice action. ' 34 Actual knowledge of the essential facts will normally remove any possibility of substantial prejudice. '35 Conversely, without knowledge of the essential facts within a reasonable time, the public corporation will usually be able to demonstrate substantial preju- dice. 13 Also, a change in the conditions which engendered the tort claim will result in substantial prejudice. 37 The First Department has been the least consistent in its handling of substantial prejudice questions. In Rodriguez v. City of New York 3 128. See Kornowski v. County of Erie, 75 A.D.2d 1019, 1019, 429 N.Y.S.2d 137, 137 (4th Dep't 1980); cf. Baehre v. County of Erie, 94 A.D.2d 943, 943, 464 N.Y.S.2d 69, 70 (4th Dep't 1983) (need at least a showing of no substantial prejudice to receive extension). 129. DeGroff v. Bethlehem Cent. Sch. Dist., 92 A.D.2d 702, 702-03, 460 N.Y.S.2d 630, 631-32 (3d Dep't 1983). 130. 74 A.D.2d 662, 424 N.Y.S.2d 772 (3d Dep't 1980), appeal dismissed, 53 N.Y.2d 939 (1981). 131. Id. at 663, 424 N.Y.S.2d at 773. 132. Whitehead v. Centerville Fire Dist., 90 A.D.2d 655, 656, 456 N.Y.S.2d 450, 451 (3d Dep't 1980). 133. Bureau v. Newcomb Cent. Sch. Dist., 74 A.D.2d 133, 135, 426 N.Y.S.2d 870, 871 (3d Dep't 1980). 134. See Ansaldo v. City of New York, 92 A.D.2d 557, 557, 459 N.Y.S.2d 302, 303 (2d Dep't 1983); Alessi v. County of Nassau, 85 A.D.2d 725, 727, 445 N.Y.S.2d 817, 820 (2d Dep't 1981). 135. See supra note 116. 136. See, e.g., Figueroa v. City of New York, 92 A.D.2d 908, 909, 460 N.Y.S.2d 119, 120 (2d Dep't 1983). 137. See Zarrello v. City of New York, 93 A.D.2d 886, 886, 461 N.Y.S.2d 410, 410-11 (2d Dep't 1983) (fall claimed to be due to icy conditions of street). 138. 86 A.D.2d 533, 446 N.Y.S.2d 50 (1st Dep't 1982), appeal dismissed, 58 N.Y.2d 899, 447 N.E.2d 80, 460 N.Y.S.2d 531 (1983). [Vol. XII A26 1984] NOTICE OF CLAIM the majority held that "there is no evidence in the record to conclude that the defendants have not been necessarily prejudiced, '" 13 9 thus putting the burden on the plaintiff to show that the defendant will not necessarily be prejudiced.1 40 The majority failed to require merely a showing that defendants had not been substantially prejudiced. A well-reasoned dissent in this case placed the burden of showing preju- dice on the defendant.' 4 ' In Szvanka v. City of New York,142 the majority affirmed, without explanation, the unreported denial of an extension. The dissent would have placed the burden of showing substantial prejudice on the defendant, noting that "the record does not disclose the slightest intimation that the delay in serving the notice of claim prejudiced, much less substantially prejudiced, the respon- dent City. Indeed, Special Term did not even address that dispositive question."' 43 However, in Heiman v. City of New York,1 44 the First Department affirmed without dissent the significance of the factor of substantial prejudice and placed the burden of showing substantial prejudice on the defendant. 45 Two subsequent decisions continued to weigh the 139. Id. at 533, 446 N.Y.S.2d at 51. 140. Id. 141. A final factor also weighs heavily in plaintiff's favor. The statute also calls for consideration of the question "whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits." The defense of this claim ...is hardly unprepara- ble. Indeed, the two-page affirmation of respondents' counsel . . . utterly fails to establish any prejudice at all .... Id. at 534, 446 N.Y.S.2d at 52 (Birns, J., dissenting) (quoting N.Y. GEN. MUN. LAW § 50-e(5) (McKinney 1977)). 142. 73 A.D.2d 877, 424 N.Y.S.2d 4 (Ist Dep't 1980), appeal dismissed, 52 N.Y.2d 894, 418 N.E.2d 1324, 437 N.Y.S.2d 305 (1981). 143. Id. at 877, 424 N.Y.S.2d at 4 (emphasis added) (Sandler, J., dissenting).. Judge Sandler added that it is obvious that the legislature intended to place primary emphasis on whether or not the delay resulted in substantial prejudice. Id. 144. 85 A.D.2d 25, 447 N.Y.S.2d 158 (1st Dep't 1982) (Judge Sandler wrote this opinion and the dissent in Szvanka, supra notes 142 & 143 and accompanying text). 145. The court stated: The amended statute further directs the courts to consider whether the delay "substantially prejudiced the public corporation in maintaining its defense on the merits." The City has urged the court to make a finding of "substantial prejudice" on the basis of the speculative possibility that the condition of the sidewalk in issue may have undergone a deterioration during the three and a half month period that elapsed between the expira- tion of the statutory period and the filing of the notice of claim. The argument is unpersuasive . . . .Even more decisive on the issue of sub- stantial prejudice is the omission from the City's papers of any claim that the police officer who found plaintiff lying unconscious on the sidewalk A27 FORDHAM URBAN LAW JOURNAL substantial prejudice factor heavily in granting extensions to serve late notice of claim. In Gelles v. New York City Housing Authority46 and King v. City of New York, 147 the First Department continued to follow Heiman by requiring a showing of substantial prejudice.'48 2. Cases Which Exceed the Bounds of Discretion Under Section 50-e Phillips v. City of New York, 149 a Second Department civil court case which declared that any delay in filing is "ipso facto" prejudi- cial, 150 is clearly not followed in New York.' 5 ' Phillips avoids the question of whether substantial prejudice exists by saying that any delay is prejudicial. This reasoning is inapposite to the intent behind the statute since all section 50-e(5) motions involve delay beyond ninety days while one of the primary factors under the statute is substantial prejudice. However, a lack of substantial prejudice, by itself, may not be a sufficient reason to grant an extension in the Second Department, 152 particularly where the delay is inexcusable. 53 was interviewed in an effort to determine whether he had observed the condition of the surrounding sidewalk .... Plaintiff should not be denied an opportunity to litigate on the merits on the basis of a finding of substantial prejudice where the City did not undertake the most minimal effort to determine the existence of facts that would have eliminated any possibility of prejudice and might in fact have confirmed the validity of plaintiff's claim. Id. at 27, 447 N.Y.S.2d at 161 (quoting N.Y. GEN. MUN. LAW § 50-e(5)). 146. 87 A.D.2d 757, 449 N.Y.S.2d 36 (1st Dep't 1982) (reversing Special Term). 147. 90 A.D.2d 714, 715, 452 N.Y.S.2d 607, 609 (1st Dep't 1982) ("the record does not indicate that the City even claims that it has suffered any prejudice"). 148. See supra notes 141-45 and accompanying text. 149. 98 Misc. 2d 1124, 415 N.Y.S.2d 349 (Civ. Ct. Kings County 1979). 150. Id. at 1127, 415 N.Y.S.2d at 351. 151. See, e.g., Centelles v. New York City Health & Hosps. Corp., 84 A.D.2d 826, 827, 444 N.Y.S.2d 193, 194 (2d Dep't 1981) (claimant served notice of claim 12 days late; court held that no substantial prejudice was shown). See supra note 107 and accompanying text for further criticism of Phillips. 152. Morris v. County of Suffolk, 88 A.D.2d 956, 957, 451 N.Y.S.2d 448, 450 (2d Dep't 1982) (although no prejudice was shown, since delay was inexcusable, to allow an extension would emasculate section 50-e(5)). This logic is specious. Section 50-e(5) should be used as a shield to protect plaintiffs from the harshness of the notice of claim requirements and not as a sword for public corporations to avoid meritorious claims. Where there would be no prejudice to the public corporation, there seems to be no valid reason for denying the extension merely because of lack of excuse. See Kornowski v. County of Erie, 75 A.D.2d 1019, 1019, 429 N.Y.S.2d 137, 137 (4th Dep't 1980); Robb v. New York City Hous. Auth., 71 A.D.2d 1000, 1001, 420 N.Y.S.2d 291, 292 (2d Dep't 1979); Hubbard v. County of Suffolk, 65 A.D.2d 567, 567-68, 409 N.Y.S.2d 24, 24-25 (2d Dep't 1978); supra notes 23-35. 153. See infra notes 185-96 and accompanying text for a discussion of cases dealing with excuse as a factor in deciding section 50-e(5) motions. [Vol. XII A28 NOTICE OF CLAIM Where a lack of substantial prejudice is combined with other factors in the claimant's favor, such as the public corporation's actual knowl- edge of essential facts, the extension will be granted.1 54 In Lavoie v. Town of Ellenburg,155 an infant plaintiff was granted an extension of time to serve notice, but the plaintiff's father, injured in the same accident as his son, was denied an extension. 5 6 The court held that since the father's excuse of " 'distress and concern, ... ignorance of the 90 day notice provision, and my efforts to run my household after the accident . . .' " was insufficient to explain the delay in filing, it would not grant the extension. 57 The court acknowl- edged the remedial nature of the 1976 amendment, but did not con- sider whether the two and one-half month delay was within a reason- able time. 58 Furthermore, the court never mentioned the word "prejudice" in its decision and seemed to ignore the 1976 amendment by requiring a valid excuse for the delay. 159 C. Other Relevant Factors 1. Necessity of Excuse for the Delay Section 50-e(5) directs the court to look at all relevant factors and also lists several factors to be considered. 60 Sufficient excuse is not one of the factors listed. Numerous courts, however, allow lack of an excuse to sway their decisions,16 while others treat sufficient excuse as 154. See Weinzel v. County of Suffolk, 92 A.D.2d 545, 546, 459 N.Y.S.2d 112, 114 (2d Dep't 1983); Lucas v. City of New York, 91 A.D.2d 637, 637, 456 N.Y.S.2d 816, 817 (2d Dep't 1982); Centelles v. New York City Health & Hosps. Corp., 84 A.D.2d 826, 826, 444 N.Y.S.2d 193, 194 (2d Dep't 1981); Segreto v. Town of Oyster Bay, 66 A.D.2d 796, 796-97, 410 N.Y.S.2d 898, 899 (2d Dep't 1978); Hubbard v. County of Suffolk, 65 A.D.2d 567, 568, 409 N.Y.S.2d 24, 24 (2d Dep't 1978). 155. 78 A.D.2d 714, 432 N.Y.S.2d 273 (3d Dep't 1979). 156. Id. at 715, 432 N.Y.S.2d at 274. 157. Id. 158. Id. 159. Id. See infra notes 160-82 for a discussion of the necessity of having a valid excuse for the delay. 160. See supra note 6 for complete text of section 50-e(5). 161. See Baehre v. County of Erie, 94 A.D.2d 943, 943, 464 N.Y.S.2d 69, 70 (4th Dep't 1983); Figueroa v. City of New York, 92 A.D.2d 908, 909, 460 N.Y.S.2d 119, 120 (2d Dep't 1983); Fox v. City of New York, 91 A.D.2d 624, 625, 456 N.Y.S.2d 806, 807 (2d Dep't 1982); Morris v. County of Suffolk, 88 A.D.2d 956, 957, 451 N.Y.S.2d 448, 449 (2d Dep't 1982); Goodson v. New York City Transit Auth., 66 A.D.2d 675, 675, 410 N.Y.S.2d 855, 856 (1st Dep't 1978). 1984] A29 FORDHAM URBAN LAW JOURNAL a strict requirement without which they will not use their discretion to grant a claimant's motion to extend.1 6 2 Sufficient evidence exists to support a finding that the failure to mention an "excuse factor" in section 50-e(5) was not an oversight, but rather a deliberate omission.6 3 As early as 1973, commentators pro- posed changes to section 50-e. Joseph Liff, Chairman of the Commit- tee for Reform of the Law, suggested, as part of his proposed amend- ment to section 50-e, that a motion to extend be based on affidavits showing "a reasonable excuse" for the failure to serve timely notice. 1 6 4 Even more relevant is the fact that Professor Graziano, whose study spawned the present amendment to section 50-e,1'6 5 included in his proposed amendment a requirement that a claimant provide the court with a reasonable excuse for the late filing. 66 Neither the Judicial Conference nor the state legislature adopted Professor Graziano's pro- posed reasonable excuse requirement. 6 7 Mario Cuomo, then Secre- tary of State, criticized the absence of a reasonable excuse require- ment in a memorandum to the counsel to the Governor. 16 In addition, a reasonable excuse requirement can be found in a closely analogous ameliorative provision of another jurisdiction. 69 The absence of an excuse requirement was clearly not an over- sight. 70 But the fact that there is no strict requirement that a plaintiff have a reasonable excuse for the delay in filing does not mean that the courts are prohibited from considering that factor. 7 ' However, the 162. See Rodriguez v. City of New York, 86 A.D.2d 533, 533, 446 N.Y.S.2d 50, 50 (1st Dep't 1982); Lavoie v. Town of Ellenburg, 78 A.D.2d 714, 715, 432 N.Y.S.2d 273, 274 (3d Dep't 1980); Szvanka v. City of New York, 73 A.D.2d 877, 878, 424 N.Y.S.2d 4, 5 (1st Dep't 1980), appeal dismissed, 52 N.Y.2d 894, 418 N.E.2d 1324, 437 N.Y.S.2d 305 (1981); In re Williams, 71 A.D.2d 684, 684, 419 N.Y.S.2d 18, 19 (2d Dep't 1979); Phillips v. City of New York, 98 Misc. 2d 1125, 1126, 415 N.Y.S.2d 349, 350 (Civ. Ct. Kings County 1979). 163. See infra notes 164-69 and accompanying text. 164. N.Y.L.J., April 16, 1973, at 5, col. 4. 165. See supra note 23. 166. See Graziano, Recommendations Relating to Section 50-e of the General Municipal Law and Related Statutes, TWENTY-FIRST ANN. REP. OF THE N.Y. JUDICIAL CONF. 358, 369 (1976). 167. See N.Y. GEN. MUN. LAW § 50-e(5); ANNUAL REPORT, supra note 1, at 291. 168. See Cuomo, Secretary of State, Memorandum Recommending Disapproval of Assembly Bill No. 10346 (July 8, 1976) (included in Bill Jacket to 1976 N.Y. Laws ch. 745). 169. N.J. STAT. ANN. § 59:8-9.(West 1982). 170. See supra notes 164-69. 171. The reason for plaintiff's delay in filing can certainly fit under the category of "all other relevant facts and circumstances. See N.Y. GEN. MUN. LAW § 50-e(5) (McKinney 1977). [Vol. XII A30 NOTICE OF CLAIM factors of actual knowledge of the essential facts and substantial preju- dice should weigh far more heavily in any court's decision. 1 72 In Baehre v. County of Erie,173 the Fourth Department denied a motion to extend, allowing the lack of a sufficient excuse to weigh heavily in its decision when neither actual knowledge nor lack of prejudice had been shown. 74 However, where the public corporation has actual knowledge of the essential facts, or will not be substantially prejudiced, the absence of an excuse should not affect the court's decision. 175 For example, in Hubbard v. County of Suffolk, 176 the court granted the motion to extend, holding that, "[a]lthough the delay in filing the notice of claim was inexcusable, defendants have at all times had actual knowledge of the essential facts constituting the claim and have not been substantially prejudiced . . . . 77 However, numerous decisions which inexplicably require a suffi- cient excuse for the delay exist. 178 Rodriguez v. City of New York 17 9 holds that a sufficient excuse is a requirement for granting an exten- sion. The court cites a case which was decided under the pre-amend- ment statute as authority for this proposition. 80 Morris v. County of Suffolk'' holds that, even in the absence of prejudice, the fact that no reasonable excuse was proffered justifies denying the extension. Other cases emphasize the lack of an excuse without even considering the issue of substantial prejudice. 82 172. See, e.g., Lucas v. City of New York, 91 A.D.2d 637, 637, 456 N.Y.S.2d 816, 817 (2d Dep't 1982); cases cited supra note 114. 173. 94 A.D.2d 943, 464 N.Y.S.2d 69 (4th Dep't 1983). 174. Id. See also Figueroa v. City of New York, 92 A.D.2d 908, 908, 460 N.Y.S.2d 119, 120 (2d Dep't 1983); Goodson v. New York City Transit Auth., 66 A.D.2d 675, 675, 410 N.Y.S.2d 855, 856 (1st Dep't 1978). 175. The absence of prejudice ensures that the purpose behind the notice require- ment-to allow the public corporation to conduct a timely investigation-is fulfilled; the lack of excuse, then, is really irrelevant. See supra notes 112-48 for a discussion of substantial prejudice. 176. 65 A.D.2d 567, 409 N.Y.S.2d 24 (2d Dep't 1978). 177. Id. at 567-68; accord Somma v. City of New York, 81 A.D.2d 889, 889-90, 439 N.Y.S.2d 50, 51 (2d Dep't 1981). 178. See supra note 162. 179. 86 A.D.2d 533, 446 N.Y.S.2d 50 (1st Dep't 1982). 180. Id. 181. 88 A.D.2d 956, 451 N.Y.S.2d 448 (2d Dep't 1982). 182. See Fox v. City of New York, 91 A.D.2d 624, 625, 456 N.Y.S.2d 806, 807 (2d Dep't 1982); Lavoie v. Town of Ellenburg, 78 A.D.2d 714, 715, 432 N.Y.S.2d 273, 274 (3d Dep't 1980); Szvanka v. City of New York, 73 A.D.2d 877, 878, 424 N.Y.S.2d 4, 4-5 (1st Dep't 1980), appeal dismissed, 52 N.Y.2d 894, 418 N.E.2d 1324, 437 N.Y.S.2d 305 (1981). The courts' attentions were misdirected. The fundamental issue is whether defendant would be hindered in preparing a defense, not the worthiness of plaintiff's excuse. See supra text section III. 1984] A31 FORDHAM URBAN LAW JOURNAL The other factors that the court can consider under section 50-e(5) are not limited to actual knowledge, substantial prejudice and ex- cuse. 183 Other recurring factors are (1) whether the plaintiff acted with due diligence in finding an attorney and (2) whether that attor- ney acted expeditiously in requesting permission to file late notice of claim. 184 VI. Analysis The amendment to section 50-e(5) of the General Municipal Law was intended to ameliorate the hardship18 5 of the prior notice of claim statute under which a claimant could file late notice only if he met specific prerequisites. 8 6 Under the amended statute, the courts are given broad discretion to extend the time to file late notice'8 7 but are directed by the legislature to pay particular attention to whether the defendant public corporation has acquired actual knowledge of the facts which constitute the claim.188 This has generally been construed to mean actual knowledge, however acquired, 89 by the public corpo- ration itself,9 0 agencies' 9' of the public corporation, or high-ranking officials' 92 of the public corporation. Actual knowledge of the facts underlying the claim, rather than knowledge that a claim will actu- ally be prosecuted, is required by section 50-e.113 Actual knowledge can be acquired after the ninety-day period if it is acquired within a 183. The courts consider all other relevant facts and circumstanses. See N.Y. GEN. MUN. LAW § 50-e(5) (McKinney 1977). 184. See Raczy v. County of Westchester, 95 A.D.2d 854, 464 N.Y.S.2d 223, 224 (2d Dep't 1983); Fox v. City of New York, 91 A.D.2d 624, 625, 456 N.Y.S.2d 806, 807 (2d Dep't 1982); Robb v. New York City Hous. Auth., 71 A.D.2d 1000, 1001, 420 N.Y.S.2d 291, 292 (2d Dep't 1979); Segreto v. Town of Oyster Bay, 66 A.D.2d 796, 797, 410 N.Y.S.2d 898, 899 (2d Dep't 1978). 185. See supra note 7 and accompanying text. 186. See supra note 17 and accompanying text. 187. See supra note 8. 188. See supra note 6 for the text of section 50-e(5). 189. See, e.g., Jakubowicz v. Dunkirk Urban Renewal Agency, Inc., 75 A.D.2d 1019, 1020, 429 N.Y.S.2d 333, 334 (4th Dep't 1980) (newspaper account of occur- rence afforded public corporation actual knowledge of essential facts constituting claim). Notice of claim itself will provide actual knowledge of the essential facts. See, e.g., Centelles v. New York Health & Hosps. Corp., 84 A.D.2d 826, 826, 444 N.Y.S.2d 193, 194 (2d Dep't 1981). 190. See, e.g., jakubowicz, 75 A.D.2d at 1020, 429 N.Y.S.2d at 334. 191. See supra notes 75 & 78 and accompanying text. But see Tarquinio v. City of New York, 84 A.D.2d 265, 270, 445 N.Y.S.2d 732, 735 (1st Dep't 1982) (knowledge of city agency would not be imputed to defendant city). 192. See supra notes 80, 82 & 84 and accompanying text. 193. See supra notes 40 & 41. [Vol. XII A32 8NOTICE OF CLAIM reasonable time.194 Reasonableness for this purpose has been inter- preted as several months beyond ninety days, 95 and, of course, may vary with the particular circumstances. 196 Actual knowledge of the essential facts correlates with a lack of substantial prejudice. 97 Where there is actual knowledge of the essen- tial facts within a reasonable time, the public corporation will usually not be substantially prejudiced. 9 8 When these two factors exist in a particular case, the motion to extend should be granted. 9 9 Where, however, the public corporation will be substantially prejudiced in defending on the merits despite having actual knowledge, the court should deny the application to extend. 200 Substantial prejudice should consist of more than a conclusory allegation 20 ' and should only be found where a defense on the merits is unpreparable 20 2 because of lengthy delay20 3 or changed conditions. 20 4 Many courts seem reluctant to follow the direction of the legisla- ture. They focus on a claimant's excuse for the delay 05 instead of on the results of delay; that is, whether it would result in substantial prejudice. For the purposes of motions to file late notices of claim, judges should avoid measuring the validity of both the plaintiff's claim2 0 6 and the plaintiff's excuse,20 7 particularly where no substantial prejudice is shown. The following proposed approach toward motions to serve late notice of claim would best achieve the "equitable bal- ance" 208 sought by the legislature in enacting section 50-e(5) .209 194. N.Y. GEN. MUN. LAW § 50-e(5) (McKinney 1977). 195. See supra note 57 and accompanying text. 196. See supra note 60 and accompanying text. 197. See supra note 116 and accompanying text. 198. See supra note 114 for cases regarding substantial prejudice to the public corporation. 199. The purpose behind the notice requirement would be fulfilled in this situa- tion. See supra notes 19-22 and accompanying text. 200. Where substantial prejudice exists, the public corporation will suffer by virtue of not having been given timely notice. The purposes of notice of claim cannot be achieved and the court should deny the motion. 201. See supra notes 123, 124 & 129. 202. See Beary v. City of Rye, 44 N.Y.2d 398, 413-14, 377 N.E.2d 453, 459, 406 N.Y.S.2d 9, 14 (1978); supra note 134. 203. See supra notes 118-21 and accompanying text. 204. See supra notes 60, 61 & 137 and accompanying text. 205. See supra notes 169, 171 & 178-82 and accompanying text. 206. See supra note 96. 207. See supra notes 160-82 and accompanying text for a discussion of the neces- sity of having a valid excuse for the delay. 208. See supra notes 25 & 26 and accompanying text. 209. See supra notes 25 & 26 and accompanying text. 19841 A33 FORDHAM URBAN LAW JOURNAL 1. If the public corporation acquires actual knowledge of the essential facts constituting the claim and the public corporation will not be substantially prejudiced in maintaining a defense on the merits, 2. If the public corporation gains actual knowledge of the essen- tial facts constituting the claim and it is nevertheless shown that the public corporation will be substantially prejudiced in defending on the merits, the strong tendency of the court should be to deny the extension. 2 t l The court should, however, consider all relevant facts including those listed in section 50-e(5), 21 2 the claimant's explanation for the delay and whether the plaintiff and his attorney acted with due diligence. 21 3 3. If it is shown that the public corporation will not be substan- tially prejudiced by the delay, but that it did not have actual knowl- edge of the essential facts constituting the claim within a reasonable time, the strong tendency of the court should be to grant the extension unless there are overwhelming reasons to deny the application, such as those which would undermine the fairness inherent in section 50- e(5). 214 VII. Conclusion Section 50-e(5) of the General Municipal Law, as amended, was intended to ameliorate the hardship and inequity inherent in a statu- tory arrangement under which persons injured as a result of the negligent acts of public corporations are required to give notice to the corporation within ninety days. In order to ensure that motions to file late notice of claim are decided in accordance with this intention, courts should determine whether the public corporation has acquired actual knowledge of the essential facts constituting the claim within ninety days or within a reasonable time thereafter, and whether the 210. See cases discussed and cited supra note 114 and accompanying text. 211. See cases discussed and cited supra notes 118-21 and accompanying text. 212. Other factors discussed in section 50-e include whether the plaintiff was an infant, disabled or relied on settlement representations. N.Y. GEN. MUN. LAW § 50- e(5) (McKinney 1977). 213. See cases cited supra note 184 and accompanying text. 214. It is hoped that the proposed approach will help reduce the number of appeals arising from section 50-e(5) motions to extend by engendering more consist- ency at the trial level courts. The number of appeals and reversals documented in this Note reveals the uncertainty which faces attorneys litigating under this statute. By paying heed to the remedial intent behind the 1976 amendment to section 50-e, by more strictly following the direction of the legislature and by standardizing the basic approach to section 50-e(5) motions to extend the time to file late notice of claim, the courts will attain the equitable balance sought by the New York legislature. [Vol. XII A34 1984] NOTICE OF CLAIM 589 public corporation would be substantially prejudiced in maintaining a defense on the merits. It is only when substantial prejudice will result, usually from a lack of actual knowledge on the part of the public corporation within a reasonable time, that the purpose behind the notice of claim requirement would be frustrated by allowing the late filing of notice of claim. Lawrence M. Nessenson A35 A36 A37