In the Matter of David H. Dalton, II, Respondent,v.Akron Central Schools, Appellant.BriefN.Y.December 5, 2013Lipsitz Green Scime Cambria, Attorneys at Law 42 Delaware Avenue, Suite 120, Buffalo, New York 14202-3924 P 716 849 1333 F 716 855 1580 (Not for Service) www.lglaw.com September 19, 2013 Andrew W. Klein Chief Clerk New York State Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: Matter of Dalton v. Akron Central Schools APL-2013-00203 Our File No. 55523.0001 Dear Mr. Klein: I submit this letter on behalf of claimant-respondent David H. Dalton, II pursuant to section 500.11(d) of the Court of Appeals' Rules of Practice. As demonstrated below, Supreme Court did not abuse its discretion in granting claimant's application pursuant to General Municipal Law § 50-(5), and the Appellate Division majority did not abuse its discretion in affirming Supreme Court's order. The Appellate Division's order entered June 14, 2013 should therefore be affirmed. THE APPLICABLE STANDARD OF REVIEW The Court of Appeals accords substantial deference to the lower courts' exercise of judicial discretion. Although '[t]here is no fixed formula to set the point at which an exercise of discretion reaches the stage of abuse[, tjhe test generally appears to be whether the particular exercise is so arbitrary and without rational basis as to amount to abuse as a matter of law, or whether the result reached is so outrageous as to shock the conscience." Karger, The Powers of the New York Court of Appeals (3d ed.) §16:4 (footnotes and internal quotation marks omitted). In other words, Paul J. Cambria, Jr k" James T. Some Herbert L. Greenman Michael Schiavone Laraine Kelley William M. Feigenbaum Joseph J. Gumkowski Richard P. Weisbeck, Jr. Mark L. Stulmaker Barry Nelson Covert Christopher S. Mattingly Robert L. Boreanaz Thomas M. Mercure John A. Collins George E. Riedel, Jr. Michael P. Stuermer ' Jeffrey F. Reina Cherie L. Peterson Joseph J. Manna William P. Moore Sharon M. Heim Paul J. Cieslik Gr egory P. Kruii Michele A. Braun Michael S. Deal Jonathan W. Brown Philip Scaffidi Robeff E. Ziske Thomas C Burnham David C. Zimmerrean Patrick J. Mackey Matthew B. Morey Melissa A. Cavagnaro Andrew 0. Miller ' Timothy P. Murphy ' Elizabeth A. Holmes Max Humann Jaclyn S. Wanemaker Katherine A. Murak Kenneth E. Webster D. Jeffrey Buckley Lynn M. Bochenek Joseph L. Guza OF COUNSEL Patrick C. O'Reilly SPECIAL COUNSEL James W. Kirkpatrick Denis A. Scinta Richard D. Furlong Scott M. Schwartz Diane M. Perri Roberts LICENSED WORKERS' COMPENSATION REPRESENTATIVE Keith T. Williams Patricia N. Lyman Seymour L.Schuller 1951-1988 Evan E.James 1955-1989 ' .Also admitted w Diffnnt nf (nlun, bin 'Also admitted in Florida Also admitted in California Also admitted in Ohio , Also admitted in Illinois Also admitted in Pennsylvania Also admitted in Connecticut 'Also admitted in Maryland BUFFALO AMHERST CHEEKTOWAGA LOS ANGELES ITHACA Lipsitz Green Scime Cambria, Andrew W. Klein, Chief Clerk September 19, 2013 Page 2 of 7 "it is clear that a holding of abuse will be made only in a case involving 'extraordinary circumstances.' " Id. (quoting Patron v. Patron, 40 N.Y.2d 582, 585 [1976]). In applying that deferential standard of review in the context of late-notice-of-claim applications, the Court in Murray u. City of New York, 30 N.Y.2d 113 (1972), held: Where satisfied that the [lower] court has acted within the perimeters of reason, we have consistently affirmed the exercise of discretion whether it has been invoked to sustain or deny grants of permission for late filing. Affirmance, however, merely connotes our refusal to interfere with the lower court' exercise of their discretion on the facts presented in that case, and not our approval of the discretion thus exercised. 30 N.Y.2d at 119 (citations, internal quotation marks, brackets, and ellipses omitted). Consistent with that reasoning, the Court of Appeals has regularly upheld the Appellate Division's discretionary determinations as to whether relief should be granted under General Municipal Law § 50-e(5). See, e.g., Pearson v. New York City Health & Hosp. Corp., 10 N.Y.3d 852 (2008); Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531 (2006); Matter of Chattergoon v. New York City Hous. Auth., 78 N.Y.2d 958 (1991); Matter of Stevenson v. County of Monroe, 63 N.Y.2d 963 (1984); Matter of Chmielewski v. City of New York, 61 N.Y.2d 1010 (1984); Baker v. New York City Health & Hosp. Corp., 36 N.Y.2d 925 (1975). The Court will, however, reverse an order permitting BUFFALO AMHERST CHEEKTOVVAGA FREDONIA NEW YORK CITY BEVERLY HILLS Lipsitz Green Scime Cambria, Andrew W. Klein, Chief Clerk September 19, 2013 Page 3 of 7 the service of a late notice where there was no room for the exercise of discretion because relief was expressly barred by statute, or the claim was patently without merit. See, e.g., Matter of Catherine G. v. County of Essex, 3 N.Y.3d 175, 179 (2004) ("Leave is not appropriate for a patently meritless claim" [citation omitted]); Pierson v. City of New York, 56 N.Y.2d 950, 954-956 (1982) (the Appellate Division lacked the authority to grant leave to serve a late notice of claim where the injured party did not seek relief under General Municipal Law § 50-e[5] until after the one-year and 90-day statute of limitations expired); Charalambakis v. City of New York, 46 N.Y.2d 785, 787 (1978) (same). In the present case, David Dalton's application under General Municipal Law § 50-e(5) was timely, and his claim is not patently without merit. The question before this Court, therefore, is whether the lower courts "acted within the perimeters of reason," Murray v. City of New York, 30 N.Y.2d at 119, in determining that Mr. Dalton should be permitted to serve a late notice of claim upon the Akron Central School Schools (hereafter "School"). They did. THE TRIAL COURT AND APPELLATE DIVISION MAJORITY DID NOT ABUSE THEIR DISCRETION IN CONSIDERING DAVID DALTON'S REPLY PAPERS There is no merit to the School's contention that the trial court and Appellate Division abused their discretion in considering claimant's reply papers, which consisted of claimant's and a co- worker's affidavits and a signed and verified copy of the proposed Notice of Claim. In raising that argument below, the School relied primarily upon decisions in which the Appellate Division held that a party seeking summary judgment must make a BUFFALO AMHERST CHEEKTOWAGA FREDON:A NEW YORK CITY BEVERLY HILLS Lipsitz Green Scirne Cambria, Andrew W. Klein, Chief Clerk September 19, 2013 Page 4 of 7 threshold showing of its entitlement to relief in its moving papers, and may not fill in evidentiary gaps via proof submitted in its reply papers. See Appellate Division Brief for Respondent- Appellant, dated November 8, 2012, pp. 12-13 (citing Couanta Niagara, LP v. Town of Amherst, 70 A.D.3d 1440, 1443 [4th Dep't 2010]; Korthas u. U.S. Foodseruice, Inc., 61 A.D.3d 1407, 1408 [4th Dep't 2009]; Nichols u. Diocese of Rochester, 42 A.D.3d 903 [4th Dep't 2007]). Those decisions are grounded upon CPLR 3212(b), which provides that a party seeking summary judgment must make a threshold showing, via proof in admissible form, "that there is no defense to the cause of action or that the cause of action or defense has no merit." If the moving party fails to make the requisite prima facie showing, the evidentiary burden does not shift to the non-moving party, and the motion must be denied regardless of the sufficiency of its proof. Winegrad v. New York Unit). Med. Ctr., 64 N.Y.2d 851, 853 (1985). CPLR 3212(b) and the case law applying it are not relevant in this proceeding, which involves an application for leave to serve a late notice of claim under General Municipal Law § 50-e(5), not a motion for summary judgment. Under section 50-e(5), the court may, "in its discretion," grant an extension of time upon considering "all . . . relevant facts and circumstances," including whether the prospective defendant would be prejudiced by the delay, and whether it "acquired actual knowledge of the essential facts constituting the claim" within ninety days of its accrual, or a reasonable time thereafter. Thus, the Legislature broadly permitted the courts to consider all pertinent factors in exercising that discretion. In contrast to CPLR 3212, General Municipal Law § 50-e(5) does not — BUFFALO AMHERST CHEEKTOVVAGA FREDONIA NEW YORK CITY BEVERLY HILLS <94 Lipsitz Green Scirne Cambria L, Andrew W. Klein, Chief Clerk September 19, 2013 Page 5 of 7 explicitly or implicitly — draw a distinction between facts that are adduced in the claimant's initial papers and facts that are adduced in his reply papers. Although Supreme Court and the Appellate Division have the discretion to disregard new factual submissions contained in the moving party's reply papers on an application pursuant to section 50-e(5), see, e.g., Matter of Wright v. City of New York, 99 A.D.3d 717, 719 (2d Dep't 2012), they are not obligated to do so, and they do not abuse their discretion if they elect to consider the material. See CPLR 2001 (court may permit omissions or irregularities to be corrected upon such terms as may be just or, alternatively, to disregard the omission or irregularity if a substantial right of a party would not be prejudiced). See also Matter of Kennelly v. Mobius Realty Holdings LLC, 33 A.D3d 380, 381-382 (1st Dep't 2006) (even on a motion for summary judgment, the rule militating against the submission of new evidence in the movant's reply papers is "not inflexible," and trial court has discretion to consider the evidence where the non-moving parties responded to it). The School sustained no arguable prejudice when claimant interposed his and his co-worker's affidavits and the verified notice of claim as part of his reply papers because the affidavits reiterated what claimant's counsel initially stated, i.e., that after falling on ice in the contractor's parking lot David Dalton informed two School employees, and because the signed notice of claim was — with the exception of the date — identical to the unsigned one that was originally interposed. Accordingly, there is no merit to the School's argument that the Appellate Division abused its discretion in considering David Dalton's reply papers.' 1 Claimant notes that the two dissenting Justices did not opine that the trial court or the Appellate Division majority abused their discretion in considering the reply papers. Rather, the BUFFALO AMHERST CHEEKTOWAGA FREDONIA NEW YORK CITY BEVERLY HILLS <2. Lipsitz Green Scirne CarnbriaL, Andrew W. Klein, Chief Clerk September 19, 2013 Page 6 of 7 THE APPELLATE DIVISION DID NOT ABUSE ITS DISCRETION IN AFFIRMING SUPREME COURT'S ORDER Under the standard of review addressed above, the question before this Court is, Did Supreme Court and the Appellate Division majority exercise their discretion in a manner that was so arbitrary and without rational basis as to amount to abuse as a matter of law, or was the result they reached so outrageous as to shock the conscience? In the absence of such an abuse of judicial discretion, the Court is "powerless" to overturn the Appellate Division's order, Matter of State of New York v. Ford Motor Co., 74 N.Y.2d 495, 502 (1989), even if it does not concur with the manner in which the court exercised its discretion. Murray v. City of New York, 30 N.Y.2d at 119. The majority's analysis — although contrary to that of the dissent — is squarely supported by the record evidence. While a court adjudicating a late-notice-of-claim application may, in its discretion, conclude that respondent lacked knowledge of the facts constituting a claim "where there is little to suggest injury attributable to" that entity's culpable conduct, Williams v. Nassau County Med. Ctr., 6 N.Y.3d at 537, such a finding was not mandated here. See Appellate Division's Memorandum and Order, at p. 2. dissent was of the view that the submissions did not establish David Dalton's entitlement to relief under General Municipal Law § 50-e(5). BUFFALO /AMHERST CHEEKTOWAGA FREDONIA NEW YORK CITY BEVERLY HILLS ohn A. Collins JAC:dmn cc: Gregory A. Cascino, Esq. <9. Lipsitz Green Scirne Cambria, Andrew W. Klein, Chief Clerk September 19, 2013 Page 7 of 7 Although the absence of a Supreme Court writing renders it impossible to say whether that court applied the same reasoning as the Appellate Division majority, it could have reasonably done so given the parties' submissions. Even if the Appellate Division's rationale varied from that of the trial court, though, it by no means constitutes an abuse of discretion or other error of law. See Matter of State of New York v. Ford Motor Co., 74 N.Y.2d at 501 (the Appellate Division "may exercise discretion independently" of Supreme Court [citation and internal quotation marks omitted]). CONCLUSION This appeal does raise a question of law reviewable by the Court of Appeals, i.e., Did Supreme Court and the Fourth Department "act[] within their discretion in granting [claimant's] motion to serve a late notice of claim"? Pearson v. City of New York, 10 N.Y.3d at 854. The question must be answered in the affirmative, and the Appellate Division's order affirmed. Respectfully submitted, Writer's Extension 305 E-Mail: jcollins@lglaw.com RUFFALO AMHERST CHEEKTOWAGA FREDONIA NEW YORK CITY BEVERLv HILLS