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 ~ourt of ~ppeal~ STATE OF NEW YORK In re the Matter of the Claim of RAYMOND NEWCOMB, Individually and as Father and Natural Guardian of AUSTIN NEWCOMB, Petitioners-Appellants, against MIDDLE COUNTRY CENTRAL SCHOOL DISTRICT, Respondent-Respondent. BRIEF OF AMICUS CURIAE THE NEW YORK STATE TRIAL LAWYERS ASSOCIATION EdwardS. Gersowitz, President NEW YORK STATE TRIAL LAWYERS ASSOCIATION 132 Nassau Street, Suite 200 New York, New York 10038 Brian J. Isaac POLLACK, POLLACK, ISAAC & DE CICCO, LLP 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ................................................................................ 1 CORPORATE DISCLOSURE STATEMENT ......................................................... 1 STATEMENT OF FACTS ........................................................................................ 3 QUESTION PRESENTED ........................................................................................ 7 POINT I SINCE THE ONLY PURPOSE SERVED BY NOTICE OF CLAIM STATUTES IS TO ENABLE A MUNICIPAL DEFENDANT OR SIMILAR ENTITY TO CONDUCT AN INVESTIGATION WHILE THE FACTS ARE STILL FRESH, A REVIEWING COURT COMMITS REVERSIBLE ERROR WHEN IT DENIES AN APPLICATION FOR LEAVE TO SERVE A LATE NOTICE OF CLAIM WHERE THE CLAIMANT IS AN INFANT WHO HAS A REASONABLE EXECUSE FOR NOT FILING THE NOTICE OF CLAIM WITHIN 90 DAYS OF ITS ACCRUAL WHERE THE RECORD ESTABLISHES THAT THE MUNICIPAL DEFENDANT’S ABILITY TO CONDUCT AN INVESTIGATION WOULD NOT BE COMPROMISED BY GRANTING THE APPLICATION ........................... 7 CONCLUSION ........................................................................................................ 19 ii TABLE OF AUTHORITIES State Cases Adkins v. New York City, 43 NY2d 346 [1977] ....................................................... 7 Allende v. City of New York, 69 AD3d 931 [2d Dept. 2010] ................................ 15 Barnes v. City of New York, 262 AD2d 46 [1st Dept. 1999] .................................. 17 Beary v. City of Rye, 44 NY2d 398 [1978] ............................................................... 7 Bensen v. Islip, 99 AD2d 755 [2d Dept. 1984] ....................................................... 16 Blaze v. New York City Department of Education, 112 AD3d 428 [1st Dept. 2013] ..................................................................................................... 9 Brown v. New York City, 95 NY2d 389 [2000] ....................................................... 8 Matter of Caridi v. New York Convention Center, 47 AD3d 526 [1st Dept. 2008] ................................................................................................... 17 Chattergoon v. New York City Housing Authority, 161 AD2d 141 ......................... 9 Cohen v. Pearl River Union Free School District, 51 NY2d 256 [1980] ................ 12 D’Alessandro v. New York City Transit Authority, 83 NY2d 891 [1994] ............... 9 Davis v. New York City Housing Authority, 200 AD2d 606 [2d Dept. 1994] ..................................................................................................... 9 DeLeonibus v. Scognamillo, 183 AD2d 697 [2d Dept. 1992] .................................. 7 DiMauro v. Metropolitan Suburban Bus Authority, 105 AD2d 236 [2d Dept. 1984] ......................................................................................................... 14 Edenwald v. City of New York, 60 NY2d 957 [1983] ............................................ 14 Matter of Felice v. Eastport/South Manor, 50 AD3d 138 [2d Dept. 2008] ............. 17 Flynn v. Long Beach, 94 AD3d 713 [2d Dept. 1983] ............................................. 16 Gibbs v. City of New York, 22 AD3d 717 [2d Dept. 2005] .............................. 13, 15 Halali v. New York City, 213 AD2d 449 [2d Dept. 1995] ........................................ 9 iii Hoffman v. New York City Housing Authority, 187 AD2d 334 [1st Dept. 1992] ..................................................................................................... 9 Horn v. Bellmore Union Free School Dist., 139 AD3d 1006 [2d Dept. 2016] ................................................................................................... 10 Johnson v. City of New York, 302 AD2d 463 [2d Dept. 2003] .............................. 16 Jordan v. City of New York, 41 AD3d 658 [2d Dept. 2007] .................................. 15 LaMay v. County of Oswego, 49 AD3d 1351 [4th Dept. 2008] .............................. 13 Leeds v. Port Washington Union Free School District, 55 AD3d 734 [2d Dept. 2008] ................................................................................................... 15 Loomis v. Civetta Corinno Constr. Corp., 54 NY2d 1823 [1981] .......................... 14 Matter of Mercado v. City of New York, 100 AD3d 445 [1st Dept. 2012] ................................................................................................... 10 Mondaca v. Westchester County, 195 AD2d 511 [2d Dept. 1993] ........................... 9 Matter of Mounsey v. City of New York, 68 AD3d 998 [2d Dept. 2009] ................................................................................................... 17 Murray v. City of New York, 30 NY2d 113 [1972] ................................................ 12 O’Brien v. Syracuse, 54 NY2d 353 [1981] ............................................................... 8 Pearson v. New York City Health & Hosps. Corp., 10 NY3d 852 [2010] .............. 12 Pendley v. City of New York, 119 AD3d 410 [1st Dept. 2014]............................... 10 Purdy v. New York City, 193 NY 521 ...................................................................... 8 Matter of Richardson v. New York City Housing Authority, 136 AD3d 484 [1st Dept. 2016] ................................................................................................... 10 Rife v. Union College, 30 AD2d 504 [3d Dept. 1968] ............................................ 15 Rivera v. New York City, 169 AD2d 387 [1st Dept. 1991] ....................................... 9 Rodriguez v. Nassau County, 126 AD2d 536 [2d Dept. 1987] ................................. 9 Rosenblatt v. City of New York, 160 AD2d 927 [2d Dept. 1990] .......................... 15 iv Matter of Ruffino v. City of New York, 57 AD3d 550 [2d Dept. 2008] ................. 17 Matter of Schiffman v. City of New York, 19 AD3d 206 [1st Dept. 2005] ............. 18 Schwartz v. New York City, 250 NY 332 [1929] ..................................................... 8 Shapiro v. County of Nassau, 5 AD3d 690 [2d Dept. 2004] ................................... 15 Singh v. CUNY, 223 AD2d 545 [2d Dept. 1996] .................................................... 16 Sweeney v. City of New York, 225 NY 271 [1919] .................................................. 8 Tatum v. New York City, 161 AD2d 580 [2d Dept. 1980] ....................................... 9 In re Thomas, 118 AD3d 537 [1st Dept. 2014] ........................................................ 13 Wally G v. New York City Health & Hosps. Corp., 27 NY3d 672 [2016] ....... 12, 13 Whitehead v. Centerville Fire District, 90 AD2d 655 [3d Dept. 1982]................... 13 Widger v. CSD No. 1, 18 NY2d 646 [1966] ............................................................. 8 Williams v. Nassau County Medical Center, 6 NY3d 531 [2006] .............. 11, 12, 13 State Statutes GML § 50-e(1)(a) ....................................................................................................... 8 GML § 50-e(2) ........................................................................................................... 8 GML § 50-e(5) ......................................................................................... 6, 10, 12, 18 Municipal Statutes Town of Brookhaven Code § 57A-1(c), 9(b), 12(c) ................................................ 14 State Regulations 22 NYCRR § 500.1(f) ................................................................................................ 1 1 COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------X App. Div. No.: 2014-05995 Raymond Newcomb, Individually, and as Natural Guardian of his minor son, Index No.: 31807/2013 Austin Newcomb, Petitioners-Appellants, BRIEF OF AMICUS CURIAE -against- Middle Country Central School District, Respondent-Respondent. --------------------------------------------------------X PRELIMINARY STATEMENT In this action involving the issue of whether the lower courts properly denied the motion of petitioner-appellant, Raymond Newcomb, for leave to serve a late notice of claim on behalf of his severely injured son, Austin Newcomb, the New York State Trial Lawyers Associates (“NYSTLA”) submits this brief amicus curiae in support of appellant’s position that the failure to grant the motion constituted an abuse of discretion as a matter of law requiring reversal of the orders by this Court. Cognizant that this matter has been fully briefed, NYSTLA offers this terse and targeted brief in support of its position. CORPORATE DISCLOSURE STATEMENT Pursuant to 22 NYCRR §500.1(f), NYSTLA is a voluntary bar association and private not for profit corporation that is overseen by a board of directors. 2 NYSTLA has no parent corporation or subsidiaries but it has affiliate chapters including the Capital Region, Genesse Region, Long Island Region, Mid-Hudson Region, Southern Tier Region, Staten Island Region, Westchester Region and Western Region. The Staten Island Regional affiliate is incorporated. NYSTLA is affiliated with the national American Association for Justice. Other legal entities separately incorporated and separately managed on which one or more officers of NYSTLA’s association serve include the New York State Trial Lawyers Institute (which provides continuing legal education programs), the Lawyers Political Action Committee of New York, the Municipal Political Action Committee, and the Big Apple Pothole & Sidewalk Corporation, a map information service. NYSTLA is a statewide organization of attorneys, most of whom practice in the personal injury field. Its certificate of incorporation expresses the purposes of the organization as follows: to “promote reforms in the law, facilitate the administration of justice, elevate the standard of integrity, honor and courtesy in the legal profession, and cherish the spirit...among members thereof.” NYSTLA exists to represent the interests of injured accident victims and often represents individuals who are poor, uneducated and unfamiliar with the legal system, rendering this appeal especially important to it. 3 STATEMENT OF FACTS NYSTLA will not repeat the statement of facts contained in the briefs already before the Court to avoid repetition. However, by way of background, Austin Newcomb (“Austin”), was injured on March 23, 2013 at 8:30 p.m. when he was struck by a vehicle while crossing Route 25 at the intersection of Marshall Drive in Selden, New York (19, 15). As a result of the accident, Austin was left in a coma and unable to speak. Austin sustained serious brain injuries and a skull fracture. He has undergone numerous surgeries and been regularly confined to hospitals (55-57). Austin was transferred to his home in September of 2013 where he remains except for medical treatment (56). Austin cannot perform simple activities of daily living and requires constant therapy which led petitioner, Raymond Newcomb (“Raymond”), and his wife, Jenny, to dedicate their lives to caring for him (56-57). Subsequent to the accident, Raymond reported the accident to Centereach High School where Austin was a student (5, 56). The accident report included the precise location where the incident took place and delineated the severity of Austin’s injuries. It is important to note that Centereach High School is run by the respondent-respondent Middle Country Central School District (“respondent”). In 4 fact, the high school provides Austin with some of his rehabilitation services currently. As plaintiff’s counsel made clear in his motion papers in the trial court and in the prior appeal in the Appellate Division, subsequent to the accident attempts to secure pertinent police reports and information respecting the accident were delayed by governmental agencies and authorities. To be more specific, the police delayed disclosure of records regarding the occurence because of the pendancy of a criminal investgation (47). However, appellant’s counsel did secure photographs of the accident scene that were taken immediately after the occurrence and thus within 90 days of the occurrence (6, 36, 54). After repeated delays, appellant finally received a full version of the photographs depicting the scene of the accident in November of 2013. These photographs showed, for the first time, that respondent was responsible for the placement of the sign that obscured the vision of drivers and pedestrians at the site. According to appellant, the negligent placement of the sign by respondent’s employees and officials constituted a proximate cause of Austin’s accident (34-35, 51-52). On November 25, 2013, appellant served a proposed notice of claim asserting that the negligent placement and maintenance of the sign by respondent and the failure to remove it contituted an affirmative act of negligence inasmuch as 5 the sign obstructed the sight lines for both pedestrian and oncoming traffic at the intersection and distracted drivers (25-29, 68-69). Thereafter, appellant moved by order to show cause seeking to have the proposed notice of claim deemed filed nunc pro tunc (10-29.2). The trial court found that Austin was incapacitated and that the criminal investigation provided a reasonable excuse for the delay in service of the notice of claim within 90 days from the date of the accrual of the claim. The trial court also found that respondent had actual or constructive knowledge of the placement and removal of the sign (6). Despite these findings, the court denied the application because “no one, including the petitioner, had actual knowledge of essential facts underlying the legal theory against the School District until the scene photographs became available in November 2013” (7). This ruling was made despite the fact that the court noted that the burden was on the respondent, not the petitioner, to demonstrate prejudice and the only claim of prejudice was a general statement made by counsel that was unsupported by any foundational facts (7). On appeal, the Second Department affirmed holding that “even assuming that the School District was responsible for the placement of the sign, the petitioners failed a to establish that the School District became aware, within 90 days after the claim accrued or a reasonable time thereafter, that the placement of the sign was connected with the happening of the accident in a way that would give 6 rise to liability on the part of the School District” (85). The court also found that appellant failed to demonstrate that the delay in service would not substantially prejudice the School District, ignoring plaintiff’s infancy, the fact that the criminal investigation engendered the delay, that there was a reasonable excuse for not filing the notice of claim earlier, that the accident was promptly reported, that respondent removed the sign following the accident, and that police pictures preserved the condition in the immediate aftermath of the accident such that respondent’s ability to investigate the claim was not compromised. On these facts, NYSTLA submits that it was erroneous to deny applellant’s application for leave to serve a late notice of claim pursuanat to General Municipal Law (“GML”) §50- e(5) as a matter of law. QUESTION PRESENTED Where a claimant establishes that a municipal defendant would not suffer legal prejudice by granting an application for leave to serve a late notice of claim because the municipality’s ability to investigate the matter would not be compromised by the granting of the motion, and where the claimant is an infant who possessd a reasonable excuse for not filing the notice of claim within 90 days of its accrual, does a reviewing court err in denying such application? NYSTLA submits that this question must be answered in the affirmative. 7 POINT I SINCE THE ONLY PURPOSE SERVED BY NOTICE OF CLAIM STATUTES IS TO ENABLE A MUNICIPAL DEFENDANT OR SIMILAR ENTITY TO CONDUCT AN INVESTIGATION WHILE THE FACTS ARE STILL FRESH, A REVIEWING COURT COMMITS REVERSIBLE ERROR WHEN IT DENIES AN APPLICATION FOR LEAVE TO SERVE A LATE NOTICE OF CLAIM WHERE THE CLAIMANT IS AN INFANT WHO HAS A REASONABLE EXECUSE FOR NOT FILING THE NOTICE OF CLAIM WITHIN 90 DAYS OF ITS ACCRUAL WHERE THE RECORD ESTABLISHES THAT THE MUNICIPAL DEFENDANT’S ABILITY TO CONDUCT AN INVESTIGATION WOULD NOT BE COMPROMISED BY GRANTING THE APPLICATION. This Court has made clear that notice of claim requirements are designed for one purpose, the prompt investigation and preservation of evidence that underlies potential claims (Beary v. City of Rye, 44 NY2d 398, 412 [1978]). “The service of a notice of claim within the time prescribed operates, in effect, as a statute of limitations. The requirement of notice … is designed to afford the municipality the opportunity to make an early investigation of the claim while the facts surrounding the alleged claim was still fresh” (Adkins v. New York City, 43 NY2d 346, 350 [1977]). In this regard, it is well settled that notice of claim requirements are not “meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones” (DeLeonibus v. Scognamillo, 183 AD2d 697-8 [2d Dept. 1992], citing Schwartz v. New York City, 250 NY 332 [1929]). 8 Of course, the service of a timely and proper notice of claim is a condition precedent to the commencement of a tort claim against a municipality (GML §50- e(1)(a)). The notice must identify the claimant, state the nature of the claim and describe the “time when, the place where and the manner in which the claim arose” (GML §50-e(2). In evaluating notices of claim, courts should focus on “Whether, based on the claimant’s description, municipal authorities can locate the place, fix the time and understand the nature of the accident.” “Reasonably read, the statute does not require those things to be stated within literal nicety or exactness”; instead, notices of claim are sufficient where they contain sufficient information to enable the municipal entity to conduct a proper investigation. See, O’Brien v. Syracuse, 54 NY2d 353, 358 [1981]; Brown v. New York City, 95 NY2d 389, 393 [2000]; Widger v. CSD No. 1, 18 NY2d 646, 648 [1966]; Purdy v. New York City, 193 NY 521, 533; Schwartz v. New York City, 250 NY 332, 335 [1929]. This Court has stated that notice of claim provisions should be construed to protect the municipalities against “unfounded claims” by enabling “its law officers to investigate promptly the circumstances surrounding the alleged accident and the place where it is said to have occurred. It is not a trap to catch the unwary or the ignorant” (Sweeney v. City of New York, 225 NY 271, 273 [1919]). In considering a motion for leave to serve a late notice of claim, all record evidence and facts must be considered (D’Alessandro v. New York City Transit Authority, 83 NY2d 891, 9 893 [1994]; Halali v. New York City, 213 AD2d 449 [2d Dept. 1995]; Davis v. New York City Housing Authority, 200 AD2d 606 [2d Dept. 1994]). Prejudice is never presumed because the issue is notification, not avoidance of liability (Hoffman v. New York City Housing Authority, 187 AD2d 334-6 [1st Dept. 1992]; Rivera v. New York City, 169 AD2d 387, 389 [1st Dept. 1991]). Indeed, a municipality’s own records or other records that recreate and preserve the scene of the accident at the time the claim arose may be sufficient to dissipate prejudice (Tatum v. New York City, 161 AD2d 580 [2d Dept. 1980]; Rodriguez v. Nassau County, 126 AD2d 536 [2d Dept. 1987]). The court’s task on a motion in this type is to strike “An equitable balance between the public corporation’s need for prompt notification of the claim against it, and an injured party’s interest in compensation” (Mondaca v. Westchester County, 195 AD2d 511-12 [2d Dept. 1993]). It is certainly true that knowledge of the facts underlying an occurrence does not constitute knowledge of the claim because the statute is not concerned with knowledge of the wrong. Instead, what the statute exacts is notice of the claim (Chattergoon v. New York City Housing Authority, 161 AD2d 141, 142 [1st Dept. 1990, affd., 78 NY2d 958 [1991]; Blaze v. New York City Department of Education, 112 AD3d 428 [1st Dept. 2013]). However, the Second Department, itself, has noted that, “In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that 10 underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves.” See, Horn v. Bellmore Union Free School Dist., 139 AD3d 1006 [2d Dept. 2016]. Contrary to the Appellate Division and trial court, photographs which depict the condition of an accident can serve to dissipate prejudice even where the municipality did not receive “actual notice of the accident until the petition was served” (Matter of Richardson v. New York City Housing Authority, 136 AD3d 484, 485 [1st Dept. 2016]). See generally, Pendley v. City of New York, 119 AD3d 410 [1st Dept. 2014]; Matter of Mercado v. City of New York, 100 AD3d 445 [1st Dept. 2012]. Section 50-e(5) of the GML provides specifically that “in determining whether to grant the extention, the court shall consider, in particular, whether the public corporation or its attorneys or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one of this section or within a reasonable time thereafter.” The statute requires the court to 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 11 settlement representations made by an authorized representative of the public corporation or its insurance carrier; 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; if service of the notice of claim is attempted by electronic means…whether the delay in serving the notice of claim was based upon the failure of the computer system of the City or the claimant or the attorney representing the claimant…and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining a defense on the merits.” Here, the lower courts expressly held that appellant possessed a reasonable excuse for not serving the notice of claim. Austin’s infancy also favors the granting of the application. While some courts have held that there must be a nexus between the claimant’s infancy and the delay in serving the notice of claim, this Court’s decision in Williams v. Nassau County Medical Center, 6 NY3d 531, 537-8 [2006] makes clear that infancy is a factor that the court should consider when evaluating an application seeking leave to serve a late notice of claim. This Court in Williams also, citing to Murray v. City of New York, 30 NY2d 113, 120 [1972], noted that “the impediment (to timely filing) may reasonably be presumed to attend infancy; there is no requirement that it be factually 12 demonstrated” and that “a delay of service caused by infancy would make a more compelling argument to justify an extention.” In the case at bar, Austin’s severe injuries, when combined with his infancy, respondent’s removal of the sign prior to 90 days, and the unavailability of critical evidenve due to a pending criminal investigation, certainly made service of the notice of claim within 90-days of the accrual of the cause of action not only difficult, but impossible. Accordingly, these factors militate in favor of reversing the trial court and Appellate Division. Of course, NYSTLA recognizes that the decision to grant or deny an application for an extension under §50-e(5) is “purely a discretionary one” (Cohen v. Pearl River Union Free School District, 51 NY2d 256, 265 [1980]). NYSTLA also recognizes, based upon this fact, that this Court’s review is limited to whether the Appellate Division abused its discretion in making such a determination as a matter of law (Wally G v. New York City Health & Hosps. Corp., 27 NY3d 672, 675 [2016]; Pearson v. New York City Health & Hosps. Corp., 10 NY3d 852, 854 [2010]). In addition, this Court has held that mere possession of records does not necessarily dissipate prejudice in connection with an application seeking leave to serve a late notice of claim, at least in the context of a medical malpractice action. (Wally G v. New York City Health & Hosps. Corp., supra, Williams v. Nassau 13 County Medical Center, supra.) However, NYSTLA submits that it is one thing to hold that a hospital, which treats tens of thousands of patients each years, does not necessarily have notice of a potential claim based on its retention of medical records, but quite another to hold tht a municipal school district, which is informed of a catastrophic accident that is completely outside the norm, does not have actual knowledge of the facts reported where the accident report is filed with the district, where the municipal defendant knows about the placement and removal of the sign and where the municipal defendant’s ability to investigate the occurrence is not impaired by the delay. In this regard, the intermediate Appellate Divisions have all held that actual knowledge of the essential facts can be imputed to the public corporation where is own employees are responsible for the commission of the tort that underlies the claimant’s action by means of their affirmative conduct. See, In re Thomas, 118 AD3d 537 [1st Dept. 2014]; Gibbs v. City of New York, 22 AD3d 717 [2d Dept. 2005]; Whitehead v. Centerville Fire District, 90 AD2d 655 [3d Dept. 1982]; LaMay v. County of Oswego, 49 AD3d 1351 [4th Dept. 2008]. On this record, it is difficult to conceive how respondent can claim “legal prejudice” as a result of the delay in serving the notice of claim. The notice of claim alleges specifically that the placement of the sign created a hazard which resulted in the accident (19-20). Appellant referenced various provisions of the 14 Town of Brookhaven Code that were violated by respondent’s affirmative act of placing the sign in an improper location. See, Town of Brookhaven Code §57A- 1(c), 9(b), 12(c). In fact, respondent’s knowledge was superior to that of appellant because its employees possessed actual knowledge of the placement and removal of the sign as well as the factors that went into its original installation. This Court has specifically held that legal prejudice is a term of art. See, Edenwald v. City of New York, 60 NY2d 957 [1983]. In Loomis v. Civetta Corinno Constr. Corp., 54 NY2d 1823 [1981], this Court held, “Prejudice, of course, is not found in the mere exposure of the defendant to greater liability. Instead, there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position.” Indeed, the Second Department, itself, has held that one cannot successfully claim prejudice when he has full knowledge of all the facts and an opportunity to present his theory of the case. (DiMauro v. Metropolitan Suburban Bus Authority, 105 AD2d 236, 240-1 [2d Dept. 1984]; see also, Rife v. Union College, 30 AD2d 504, 505 [3d Dept. 1968]). While these cases involve motions seeking leave to amend pleadings, in the context of notice of claim jurisprudence, the same rule applies. See Allende v. City of New York, 69 AD3d 931, 933 [2d Dept. 2010] (Defendants “conclusory 15 asertion that it will be unable to investigate the petitioner’s claim due to the passage of time” was “insufficient to overcome the petitioner’s showing of a lack of substantial prejudice”); Leeds v. Port Washington Union Free School District, 55 AD3d 734 [2d Dept. 2008]; Jordan v. City of New York, 41 AD3d 658 [2d Dept. 2007]; Gibbs v. City of New York, 22 AD3d 717 [2d Dept. 2005]. NYSTLA also notes that the Second Department has recognized that prejudice is specific to the facts of the case under review. Thus, for example, where a transitory condition would not likely have existed for 90 days after an accident, a municipal defendant cannot show prejudice where a claimant moves for leave to serve a late notice of claim because the condition would be unlikely to be present if the notice of claim had been timely served (Shapiro v. County of Nassau, 5 AD3d 690 [2d Dept. 2004]). In Rosenblatt v. City of New York, 160 AD2d 927, 928, [2d Dept. 1990]) the Second Department remarked “In view of the transitory nature of the alleged injury-producing condition, the City’s investigation of the claim was no more hindered on the 108th day following the accident that it would have been had notice been served earlier within the 90-day period.” NYSTLA also points out that the Second Department has held in the context of notice of claim jurisprudence, that it “is generally inappropriate to place the burden of proof on a party in the case where the facts governing the resolution of the controversy are within the exclusive knowledge of the opposing party” 16 (Johnson v. City of New York, 302 AD2d 463, 464 [2d Dept. 2003]). The Second Department in Johnson, citing to Singh v. CUNY, 223 AD2d 545 [2d Dept. 1996], stated that where “the respondent frustrated the petitioner’s efforts to demonstrate that the respondent had actual notice of the essential facts constituting the claim”, burdening the claimant with the responsibility to establish prejudice was unfair and not appropriate. In the case sub judice, the delay in providing appellant with relevant records and photographs should not redouned to appellant’s detriment based on this priniciple of law. We note as well that the Second Department has held that a claimant’s serious physical injury provides a compelling excuse for granting an application for leave to serve a late notice of claim (Bensen v. Islip, 99 AD2d 755 [2d Dept. 1984]; Flynn v. Long Beach, 94 AD3d 713 [2d Dept. 1983]). In Bensen, the Second Department stated, “We do not consider the possibility that the Town did not receive actual knowledge until the date of this application as necessarily dispositive.” In short, the documentary evidence that exists on this record setting forth the underlying incident and how it transpired (Matter of Mounsey v. City of New York, 68 AD3d 998 [2d Dept. 2009]; Matter of Felice v. Eastport/South Manor, 50 AD3d 138 [2d Dept. 2008]; Matter of Caridi v. New York Convention Center, 47 17 AD3d 526 [1st Dept. 2008], together with photographs that memorialize the condition of the site and where the sign was placed at the time of the accident (Matter of Ruffino v. City of New York, 57 AD3d 550 [2d Dept. 2008]; Barnes v. City of New York, 262 AD2d 46 [1st Dept. 1999], under accepted precedent from this and other appellate courts compelled the granting of the motion. Particularly compelling is Ruffino, supra, 57 AD3d at 552, where the Second Department stated, “Even though the subject wooden board had been removed and the underlying boardwalk repaired within one month after the accident, the petitioner took photographs of the defect on the day of the accident and returned to inspect and photograph the location approximately one month after the accident.” Here, where an independent police investigator took photographs that memorialized the accident scene, and respondent itself visited the scene of the accident (when respondent removed the alleged negligently placed sign) within 90 days, appellant’s proof is even stronger. NYSTLA also submits that as a matter of policy, based upon this Court’s prior decisional law dealing with the purpose of notice of claim statutes, this Court should hold that GML §50-e(5) is “remedial in nature and should be liberally construed” (Matter of Schiffman v. City of New York, 19 AD3d 206, 207 [1st Dept. 2005]). 18 In the end, in this case, a potentially meritorious cause of action has been extinguished for a catastrophically injured minor who showed good cause for not serving a notice of claim earlier and has demonstrated, through record evidence, that the municipality’s ability to investigate this claim has not been compromised. That decision is contrary to precedent, contrary to public policy and, perhaps most importantly, contrary to notions of fair play and justice. This Court should hold that the Appellate Division and the trial court abused their discretion in denying appellant’s application for leave to serve a late notice of claim as a matter of law. CONCLUSION It is respectfully submitted that this Court should reverse the Appellate Division and grant appellant's application for leave to serve a late notice of claim and issue any other, further or different relief as it deems just, proper and equitable. Brian J. Isaac, Esq. Of Counsel Respectfully submitted ~-·~~ ~~~~w~~ EDWARD H. GERSOWITZ, ESQ., Pres· t, NEW YORK STATE TRIAL LA WYERS ASSOCIATION 132 Nassau Street, Suite 200 New York, NY 10038 212-349-5890 POLLACK POLLACK ISAAC & DE CICCO Brian J. I ac, Esq. 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 19