In the Matter of Ryszard Grajko, Appellant,v.City of New York, et al., Respondents.BriefN.Y.November 14, 2017August 2, 2017 State of New York Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Attn: Clerk’s Office Re: Matter of Grajko v. City of New York, et al. Bronx Co. Index No. 24793/2016 APL-2017-00120 Dear Sir/Madam: My firm represents the Petitioner-Appellant Ryszard Grajko in the above- noted case. Previously, my office provided a letter submission pursuant to section 500.11 of the Court of Appeal’s Rules of Practice. As per the Court’s request in its correspondence dated July 25, 2017, I submit this further letter addressing the Court’s subject matter jurisdiction with respect to whether the two-Justice dissent at the Appellate Division is on a question of law. I write to further address Petitioners-Appellanf s position on the jurisdictional issue referenced above and to justify the Court’s retention of subject matter jurisdiction in this action. 1 Overview Petitioner-Appellant seeks reversal of the Appellate Division’s Order which improperly reversed the lower Court’s Order granting Petitioner leave to serve a late Notice of Claim pursuant to General Municipal Law §50-e (5).1 In the instant action, the Court of Appeals properly has subject matter jurisdiction over this action, since the Appellate Division majority committed legal error in failing to analyze this case pursuant to the legal standards set forth in Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455 (2016). Specifically, the Appellate Division majority held that (1) Petitioner’s reliance on Newcomb was “misplaced” since unlike Newcomb no other municipal entities had been timely served with a Notice of Claim and; (2) thus, the Appellate Division majority failed to apply Newcomb's clear legal standards and language in evaluating whether the Respondents in this action were substantially prejudiced by Petitioner’s delay in serving his Notice of Claim. It was only the two-Justice dissent that analyzed this action pursuant to this Court’s decision and holding in Newcomb. Accordingly, the two-Justice dissent in this matter was clearly on a question of law and this Court properly has subject matter jurisdiction of the within appeal. 1 A copy of the Appellate Division’s decision entered on May 25, 2017 was submitted with Petitioner’s earlier letter submission dated July 19, 2017. Matter of Grajko v. City of New York, 150 A.D.3d 595 (1st Dept 2017). 2 The Majority Decision Improperly Held That Newcomb Did Not Apply to the Instant Action In Matter of Newcomb v. Middle Country Sck Dist., 28 N.Y.3d 455 (2016), this Court carefully analyzed the evidentiary showing required for General Municipal Law §50-e(5) motions to file late notices of claim and particularly focused on the substantial prejudice factor related thereto. In the instant action, the Appellate Division majority failed to analyze this case pursuant to this Court’s recent holding in Newcomb and improperly determined that Petitioner-Appellant failed to make the requisite showing for permission to serve a late notice of claim. Importantly, the majority held that “Petitioner’s reliance on Newcomb is misplaced” on the grounds that “in Newcomb, a timely notice of claim had already been filed against the other municipal defendants and the only question was whether to permit the filing of a late notice of claim against the School District.” There is no basis however, for the majority’s holding that Newcomb only applies to the limited number of General Municipal Law §50-e (5) motions where another municipal entity was timely served with a Notice of Claim. The Court of Appeals in Newcomb, never limited its holding to such a small subset of General Municipal Law §50~e (5) applications especially considering the detail in which this Court analyzed the substantial prejudice factor and the Court’s clear dictates relating thereto. 3 In Newcomb, the school district was served with Plaintiffs Notice of Claim after the 90-day statutory deadline to serve a notice of claim had expired. Additionally, the claim against the school district was for an entirely new claim related to signage that was not previously asserted against the other municipal defendants, since Petitioner only asserted the signage claim after he reviewed photographs following the expiration of the 90-day period within which to serve a claim. Id. The Court of Appeals never stated and surely never intended for Newcomb to apply to such a small fraction of late notice of claim motions where Plaintiff was seeking to serve an additional entity after timely serving other municipal defendants. This is further evidenced by the fact that the Newcomb Court only referenced the fact that other municipal defendants were timely served as a brief comment when relaying the factual history of the case. Importantly, this fact was not addressed during the Court’s analysis of the case. While, the Appellate Division majority hastily determined that Newcomb was inapplicable to the case at bar, the dissent’s opinion in contrast, specifically referenced this Court’s language in Newcomb and analyzed the instant action pursuant to Newcomb's legal standards as set forth below. The Appellate Division majority purposely rejected binding caselaw in this matter and deliberately rejected the legal standards set forth in Newcomb. Accordingly, the Appellate Division 4 majority’s failure to follow Newcomb constituted legal error and thus vests this Court with subject matter jurisdiction. The Majority Decision Failed to Apply Newcomb’s Legal Standards to the Facts of This Case In the instant action, in holding that Newcomb did not apply to the facts of this case, the Appellate Division majority failed to evaluate and decide this action pursuant to the specific language and burden shifting paradigm set forth in Newcomb. As stated above, and in Petitioner’s previous submission, under Newcomb, Petitioner’s initial burden in establishing “substantial prejudice” is very low and need not extensive. Instead, Petitioner is only required to set forth “some evidence or plausible argument” to demonstrate a lack of substantial prejudice. Newcomb, 28 N.Y.3d at 466. Once Petitioner meets this burden, Respondents were required to make a “particularized evidentiary showing” that they would be substantially prejudiced in order for the claim to be disallowed. Id. None of these standards were addressed in the majority decision and none of this language was cited. Accordingly, the Appellate Division majority in this matter, failed to analyze whether Petitioner set forth “some evidence or plausible argument” to demonstrate a lack of substantial prejudice. After failing to make this initial inquiry, the majority then failed to evaluate whether Respondents in opposition, made 5 “particularized evidentiary showing” of substantial prejudice.2 Rather than applying the burden shifting standard of Newcomb to the facts of this case, where Petitioner’s initial burden is low, the Court instead held that Newcomb did not apply to this case and failed to properly weigh the parties’ respective burdens as required by the Court of Appeals. The majority also ignored Newcomb’s clear mandates regarding “mere passage of time” arguments and oppositions which are supported solely by an Affirmation of counsel.3 By contrast, the dissent specifically analyzed this case utilizing the specific language set forth in Newcomb, repeatedly referencing this Court’s holding and its language throughout its dissent. From the outset, the dissent noted that “respondents have failed to show that they are substantially prejudiced by the late notice of claim” specifically citing Newcomb. Using the aforementioned standards set forth in Newcomb, the dissent went on to find that Petitioner “met his burden of showing lack of substantial prejudice” and held that Respondents in opposition failed to make the requisite “particularized evidentiary showing” of substantial prejudice required by the Court of Appeals. The dissent also noted that respondent’s opposition was based solely on the passage of time argument which 2 Petitioner’s position on the merits is addressed in his prior letter submission dated July 19, 2017. 3 This Court held in Newcomb, that “it is an abuse of discretion as a matter of law when ... a court determines, in the absence of any record evidence to support such determination, that a respondent will be substantially prejudiced in its defense by a late notice of claim.” Newcomb, 28 NY.3d at 460. 6 Newcomb expressly rejected and consisted solely of an affirmation of counsel. Accordingly, the dissent in this action specifically applied the language and legal standards set forth in Newcomb which the majority expressly rejected. The majority in the Appellate Division also confused the factors of substantial prejudice with the issue of actual knowledge in its decision and Order. In the majority opinion, the Appellate Division notes when evaluating substantial prejudice that there is “no evidence respondents were aware of an accident even occurring.”4 The majority combined the two separate factors of prejudice and actual knowledge even though they are two separate factors to be evaluated independently of one another. This was again at odds with Newcomb which held that even where actual knowledge may be lacking, a municipal defendant may not be substantially prejudiced by the delay.5 Notably the dissent did not confuse the issue of actual notice with substantial prejudice in its opinion when analyzing whether Respondents were substantially prejudiced by Petitioner’s delay. Importantly, the dissent in evaluating this case also properly looked to whether Respondents were substantially prejudiced by Petitioner-Appellant’s delay. The majority however in addition to disregarding this Court’s mandates in Newcomb, also improperly applied the wrong legal standard, repeatedly referencing whether 4 See the Appellate Division’s Decision and Order which is annexed to Petitioner-Appellant’s prior submission. 5 Matter of Newcomb, 28 N.Y.3d at 467. 7 Respondents were merely “prejudiced” by the delay rather than substantially prejudiced. Accordingly, the majority and dissent were evaluating the evidence in this case pursuant to two different legal standards where only the dissent’s evaluation was in line with both the Court’s holding in Newcomb and the relevant statutory language. The Two Justice Dissent at the Appellate Division is On a Question Of Law As stated above, the Appellate Division majority held that Petitioner’s reliance on Newcomb was misplaced and proceeded to apply its own standards in analyzing Petitioner’s application in place of this Court’s clear dictates in Newcomb. In doing so, it reversed the lower Court’s ruling granting Petitioner’s motion to serve a late notice of claim. The dissent, on the other hand, after applying this Court’s legal standards as set forth in Newcomb held that the lower Court properly granted Petitioner’s motion to file a late notice of claim. The majority and dissent in this action did not merely make different factual determinations after evaluating the evidence. Instead, the majority and dissent applied different legal standards in evaluating this case. The majority committed legal error in disregarding this Court’s dictates in Newcomb. The fact that the dissent applied Newcomb to the facts of this case and held that Petitioner’s motion was properly granted supports the fact that the two-Justice dissent was on a question of law. 8 Accordingly, for the reasons set forth above, this Court has subject matter jurisdiction over the within action and the Order appealed from should be reversed and the Petitioner-Appellant’s application to file a late notice of claim should be granted. Respectfully, Gregoiy GJC:jm Cornell Grace, P.C. Attorneys for Respondents-Respondents 111 Broadway, Suite 810 New York, New York 10006 (212)233-1100 cc: 9 COURT OF APPEALS OF THE STATE OF NEW YORK WORD COUNT CERTIFICATION Pursuant to 22 NYCRR § 500.11(m) I hereby certify pursuant to 22 NYCRR § 500.11(m) that the foregoing brief was prepared on a computer using Microsoft Word. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in this submission, inclusive of point headings and footnotes and exclusive of pages containing proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 1895. Dated: New York, New York August 2, 2017 Gregory J. Cannata, Esq. Gregory J. Cannata & Associates, LLP Attorneys for the Petitioner-Appellant 60 East 42nd Street, Suite 932 New Yorlc, New York 10165 (212) 553-9205 10