In the Matter of David H. Dalton, II, Respondent,v.Akron Central Schools, Appellant.

Brief

N.Y.December 5, 2013

NEW YORK CITY OFFICE: 10 ROCKEFELLER PLAZA SUITE 900 NEW YORK, NY 10020 212-692-0496 FAX 212-692-0639 Gregory A. Cascino Attorney at Law CONGDON, FLAHERTY, O'CALLAGHAN, REID DONLON, TRAVIS & FISHLINGER AITORNEYS AND COUNSELORS AT LAW A Professional Corporation THEOMNI 333 EARLE OVINGTON BLVD. SUITE 502 UNIONDALE, NY 11553-3625 516-542-5900 FAX NO. 516 542-5912 E-mail: gcascino@cfolegal.com August 26, 2013 New York State Court of Appeals 20 Eagle Street ALBANY OFFICE: 12 METRO PARK ROAD SUITE 207 COLONIE, NY 12205 518-437-9300 FAX 518-437-1182 Writer's direct dial: 516-750-9349 Albany, New York 12207 Attn: Andrew W. Klein, Esq. Re: Dalton v. Akron Central Schools APL-20 13-00203 Dear Mr. Klein: This office represents Respondent-Appellant Akron Central Schools (the ''District''). Please consider this letter as the District's Rule 500.11 submission in support of its appeal from the June 14, 2013 Order of the Supreme Court, Fourth Department, which, in a three-two decision, affirmed an Order of the Erie County Supreme Court granting Claimant-Respondent leave to serve a late notice of claim. Factual and Procedural Background It is alleged that on December 2,2010, claimant slipped and fell on ice while traversing the District's parking lot. By Notice of Petition filed January 6, 2012, he brought a proceeding to serve a late notice of claim. This petition is remarkable, however, for what it did not contain. In this regard, although Claimant's counsel stated that "[ u ]pon information and belief, employees of Akron Central School were advised of the incident within hours of its occurrence" (9 ~6) there was no sworn statement from Claimant or any other admissible evidence submitted. In opposition the District highlighted this lack of evidence, and in reply Petitioner submitted his own affidavit where he stated that after his fall he told District employees about "the incident" (49 ~~6-7). Of particular relevance here, Claimant never claimed that he informed anybody at the District that he was injured, and his attorney never argued that he provided this information to the District. The Supreme Court granted the petition and the District appealed. In its Appellate Brief the District argued that the Supreme Court abused its discretion because Claimant failed to submit any evidence with his moving papers. Although Claimant belatedly submitted an affidavit with. his reply, this was procedurally improper. Additionally, even if this affidavit was considered it was insufficient to meet Claimant's burden because he never stated therein that he informed anybody at the District that he sustained any injuries. In his Respondent's Brief Claimant conceded that he did not submit any evidence with his moving papers, but argued that it was not improper for him to hold off until his reply because the Dalton v. Akron Central Schools APL-20 13-00203 District was not prejudiced. On the merits, Claimant never argued in his brief that he alerted anybody at the District that he was injured. Rather, he argued that because the District knew he slipped on ice in its parking lot, his "application should not be rejected on the ground that the School was ostensibly unaware ofthe nature of his injuries."(Brief of Claimant-Respondent at 16). The Fourth Department's Order By Order dated June 14,2013, the Fourth Department, in a three-two decision, affirmed the Supreme Court. In finding that Claimant had met his burden of demonstrating that the District had actual knowledge of the incident and his injuries, the majority noted; Claimant averred in his affidavit in support of his application that, "[o]n December 2, 2010 at approximately 7:00 a.m., I was injured when I slipped and fell in the contractor's parking lot of Akron Central Schools due to the icy and slippery condition in the parking lot (hereinafter 'the incident')." Claimant's definition of "the incident" thus includes the manner in which the accident occurred, as well as the injuries resulting therefrom. Claimant further averred in his affidavit that, after he fell, he went inside the school and told school employees about "the incident." Because the incident was defined in his affidavit as both the fall in the parking lot and the injuries resulting therefrom, we conclude that the court did not abuse its discretion in determining that respondent had actual knowledge of the underlying occurrence and claimant's injuries. The two dissenting Justices found that Petitioner had not informed the District that he was injured, noting that; during oral argument of this appeal, claimant's attorney conceded that he did not interpret his client's affidavit in that manner. Moreover, despite the fact that respondent repeatedly asserted in its appellant's brief that it was unaware that claimant had been injured, claimant's brief merely asserts that he put respondent "on notice that he had slipped and fallen due to [respondent's] negligent failure to maintain the parking lot as it should have been." The District now appeals to this Court. The Appellate Division And Supreme Court Abused Their Discretion As this Court is well aware, the crucial factor in determining whether to grant an application to serve a late notice of claim is whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days. See General Municipal Law §50-e(5); Williams v. Nassau County Medical Center, 6 N.y'3d 531 (2006). On this issue, it has consistently been held that it is not enough to show that a municipality knew about an occurrence, rather it must also be shown that the municipality was aware the claimant sustained injuries as a result. See Jackson v. Newburgh Enlarged City School District, 85 A.D.3d 1032 (2d Dep't 2011); Santana v. Western Regional Off-Track Betting Corporation, 2 A.D. 3d 1304 (4th Dep't 2003); Spaulding v. Cobleskill Richmondville Central School District, 289 A.D.2d 860 (3d Dep't 2001). The majority and dissent agreed on this point, but disagreed on whether Claimant met his burden. Dalton v. Akron Central Schools APL-20 13-00203 As explained above, when Claimant filed his petition he failed to submit any evidence in support. The District pointed out this absence in its opposition, and in reply Claimant submitted the affidavit relied on by the majority in affirming the granting of his petition. It is well settled that because a movant must submit all their evidence with their moving papers, new evidence submitted in reply cannot be considered. See Doyaga v. Camelot Taxi Inc., 102 A.D.3d 594 (1 st Dep't 2013); Covanta Niagara, L.P., v. Town of Amherst, 70 A.D.3d 1440 (4th Dep't 2010); Westbrook v. Village of Endicott, 67 A.D.3d 1319 (3d Dep't 2009); Klimis v. Lopez, 290 A.D.2d 538 (2d Dep't 2002). Contrary to Claimant's claim to the Fourth Department, this principal applied to his late notice of claim petition, as he bore the evidentiary burden thereon. See Wrightv. City of New York, 99,A.D.3d 717 (2dDep't2012); Contev. Valley Stream Central High School District, 23 A.D.3d 328 (2d Dep't 2005); see also Felice v. Eastport/South Manor C.S.D., 50 A.D.3d 138, 152 (2d Dep't 2008)("It makes sense that the burden of establishing the lack of prejudice be placed on the claimant, who, after all, is seeking to excuse his or her failure to comply with the statue"). Thus, the Appellate Division erred in even considering Claimant's belated affidavit, and should have dismissed the petition based on his failure to submit any evidence with his moving papers. See Tonissen v. Huntington U.F.S.D., 80 A.D. 3d 704 (2dDep't2011); Montfortv. Rockville Centre Union Free School District, 56 A.D.3d 480 (2d Dep't 2008). Moreover, even if the Fourth Department could consider this affidavit, there is no claim therein that Claimant ever informed anybody at the District he was injured. While the majority engaged in a tortured reading ofthe affidavit to find that he had, the dissent correctly pointed out that this interpretation had never before been raised, and that "during oral argument of this appeal, claimant's attorney conceded that he did not interpret his client's affidavit in that manner." It is uniformly accepted that the Appellate Division can only consider legal arguments that were previously made to the Supreme Court. See Eisenhauer v. County of Nassau, 106 A.D.3d 775 (2d Dep't 2013); Luetto v. Abreu, 105 A.D.3d 558 (1 st Dep't 2013); Corporate Woods 11, LP v. Board of Assessment Review ofthe Town of Colonie, 83 A.D.3d 1250 (3d Dep't 2011); Ciesinski v. Town of Aurora, 202 A.D.2d 984 (4th Dep't 1994). Similarly, they can only consider arguments raised by the parties on the appeal. See Pierce v. Village of Horseheads Police Department, 107 A.D.3d 1354 (3d Dep't 2013); Colonial Surety Company v. Genesee Valley Nurseries, Inc., 94 A.D.3d 1422 (4th Dep't 2012); Edelman v. Emigrant Bank Fine Art Finance, LLC, 89 A.D.3d 632 (1 st Dep't 2011); Kane v. Triborough Bridge & Tunnel Auth., 8 A.D.3d 239 (2d Dep't 2004). It is respectfully submitted that by ruling in Claimant's favor based on an argument that was never presented to either it or the Supreme Court, the Fourth Department abused its discretion. On the merits, it is submitted that the Fourth Department's reading of the affidavit was flawed. While the majority treated the affidavit as if it'was interpreting a voluminous and complicated contract with defined terms, this was a twelve paragraph affirmation with only two paragraphs describing the interactions between Claimant and school employees. If Claimant actually intended to state that he relayed that he was injured, he could have easily done so in a single sentence stating as much. The absence of such a statement, however, shows that this was not done. Dalton v. Akron Central Schools APL-20 13-00203 Furthermore, even accepting the majority's interpretation, all that Claimant has shown is that he informed the District that he sustained a generic injury of unknown severity. In this regard he admitted that he first sought medical treatment the day after the incident, and that he never returned to the school (48-49 ~~8-9). Since schools do not have the resources to conduct full scale investigations into every single bump and bruise, the District would not have had the requisite notice even if it had been aware that Claimant simply ''was injured" See Padovano v. Massapequa Union Free School District, 31 A.D.3d 563 (2d Dep't 2006)(noting that school could not "be faulted for failing to investigate the incident immediately after its occurrence, since all parties concerned - including the infant, her mother, and the school nurse - initially believed the injury to be minor"). Given the above, it is submitted that both the Supreme Court and the Fourth Department abused their discretion. The Dissent is On a Matter of Law The two justice dissent is on a matter oflaw; namely whether the Appellate Division should have considered the affidavit which was submitted for the first time with Claimant's reply, and whether it should have interpreted this affidavit in a manner never urged by Claimant. Since the order granting leave finally determined the action, see Harris v. Niagara Falls Board of Education, 6 N.Y.3d 155 (2006), all requirements for an appeal as of right have been met. See CPLR §5601(a). Conclusion For the foregoing reasons, it is respectfully requested that this Court accept this appeal as of right, reverse the Appellate Division, and dismiss the petition. CC: Lipsitz Green Scime Cambria, LLP 42 Delaware Avenue, Suite 120 Buffalo, New York 14202-3924 Attn: John A. Collins, Esq. Very truly yours, jfrankHn QCourt llre~~, 3Jnc. 229 West 28th Street 8th Floor , New York, New York 10001 (212) 594-7902 AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK COUNTY OF NEW YORK, ss.: Cesar R. Vila, being duly sworn, deposes and says that he is over the age of 18 years, is not a party to this action, and resides at 5 Fourth Place, Garden City, New York 11530. That on August 27, 2013, he served 1 copy of the August 26, 2013 Letter on behalf of Akron Central Schools, APL-2013-00203 (David H Dalton, II v. Akron Central Schools) on: JOFIN A. COLLINS, ESQ. LIPSITZ GREEN SCIME CAMBRIA LLP 42 Delaware Avenue, Suite 120 Buffalo, New York 14202 (716) 849-1333 by depositing the same, properly enclosed in a securely-sealed, post-paid wrapper, in a mail depository regularly maintained by the United States Postal Service in the Borough of Manhattan, City of New York, addressed as shown above. Sworn to before me on August 27,2013