In the Matter of Ryszard Grajko, Appellant,v.City of New York, et al., Respondents.BriefN.Y.November 14, 2017State of New York Court of Appeals 20 Eagle Street July 19, 2017 Albany, New York 12207-1095 Attn: Clerk's Office Re: Matter of Grajko v. City of New York, et al. Dear Sir/Madam: Bronx Co. Index No. 2479312016 APL-2017-00120 My firm represents the Petitioner-Appellant Ryszard Grajko in the above- noted case. I respond in that capacity to the Court's letter designating this appeal as one to be reviewed pursuant to the abbreviated procedures detailed in section 500.11 of the Court's Rules of Practice. I write to summarize the Petitioner's positions on the merits of the appeal in the event that the Court resolves to decide the case without full briefing and argument. Petitioner also requests the opportunity to submit a reply should the Court continue with its review pursuant to section 500.11. 1 Overview Petitioner-Appellant seeks reversal of the Appellate Division's ruling 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 While the Appellate Division majority held that the lower Court improvidently exercised its discretion in granting Petitioner's motion to file a late notice of claim, this is belied by the facts set forth in both Petitioner's original motion papers and subsequent appellate opposition. Furthermore, Petitioner- Appellant established the requisite legal criteria for serving a late notice of claim including setting forth a reasonable excuse for his delay, establishing that Respondents and their insurer had actual knowledge of the essential facts underlying the incident within the statutory period and demonstrating a lack of substantial prejudice to Respondents. Most importantly, the Appellate Division majority disregarded the Court of Appeals recent decision in Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455 (2016) and failed to apply this Court's holdings in Newcomb when evaluating whether Respondents were substantially prejudiced by the delay. While Petitioner's motion and subsequent appellate opposition was supported by an affidavit and documentary proof establishing a lack of substantial prejudice to the 1 An additional copy of the Appellate Division's decision entered on May 25, 2017 is submitted along with this letter. Matter o/Grajko v. City of New York, 150 A.D.3d 595 (1st Dept. 2017). 2 Respondents by his late service, the Appellate Division in a three to two, decision instead found in favor of Respondents who set forth nothing more in their papers than the unsupported musings of counsel. The Appellate Division's failure to apply this Court's dictates in Newcomb to the instant action constitutes legal error and for that reason the Appellate Division's decision must be reversed in favor of the Petitioner-Appellant. The Key Facts of The Case This case concerns an incident which occurred on July 15, 2015 at the LS. 339 school construction site located at 1600 Webster Avenue in Bronx, New York. Petitioner Ryszard Grajko, was employed as a bricklayer by Abax, Inc. at the worksite.2 Mr. Grajko's employer, Abax, Inc. was hired to build a brick addition to the school. Because of the conditions at the site, a triangular rather than a rectangular scaffold was erected. The floor of this scaffold did not lay flat and even. Additionally, a hoist was not constructed on this scaffold. On the day of the incident, Petitioner was required to lift 60 to 70-pound buckets of bricks and mortar from the ground to the first level of the scaffold, and then to the second level of the scaffold which caused him to injure his shoulder. As Petitioner was 2 The property where the incident occurred is owned by Respondent The City of New York and the construction work was being performed by and in conjunction with Respondents The New York City Board of Education and The New York City School Construction Authority. 3 working on the scaffold, he tripped and stumbled due to the uneven floor of the scaffold. As a result, Petitioner injured his shoulder and hip. Notably, it was the practice at this worksite to dismantle the subject scaffold at the conclusion of work each day, and to rebuild it each morning. As a result, the subject scaffold was dismantled at the end of the day of Petitioner's accident and was rebuilt the following morning (R30-R33). 3 Immediately following the incident, Petitioner reported the incident to his employer. Petitioner also filed a Workers' Compensation claim shortly thereafter (R34-R36). Respondent New York City School Construction Authority was an additional named insured under Petitioner's employer's liability and Workers' Compensation policies (R37). Thus, the insurer for Respondent New York City School Construction Authority obtained actual notice of Petitioner's accident immediately after the accident. As a result of the uneven scaffold flooring and the lack of a hoisting system at the site, Mr. Grajko sustained several injuries including but not limited to a tear of the right distal supraspinatus tendon which required arthroscopic subacromial decompression, bursectomy and acromioplasty surgery on November 11, 2015, approximately four months after the incident. Petitioner also suffered a right hip labral tear which required an arthroscopy and osteoplastic surgery on July 8, 2016, 3 All such references correspond to pages in the Record on Appeal that Respondents submitted to the Appellate Division. Petitioner-Appellant's Affidavit is located at R30-R33. 4 almost one year after the incident. Petitioner now suffers from chronic pain in his right shoulder and hip and has been unable to return to work as a bricklayer since approximately two days after the incident. It was only after his hip surgery, on July 8, 2016, that Petitioner realized this accident effectively. ended his career in construction and that he had the right to pursue a lawsuit related to same (R30- R33). As stated in Petitioner's underlying motion and appellate opposition, Respondents and Petitioner's employer Abax are in possession of photographs of the subject site and scaffold which would be available for inspection by the parties. In fact, several of these photographs were previously provided to Respondents. Petitioner is also aware of multiple identifiable witnesses who are available to testify in this lawsuit regarding the condition of the scaffold, how the work was performed and Petitioner's accident. Notably, several of these individuals were identified at Petitioner's 50-h hearing. These specific individuals include the two bricklayers employed by Abax who worked alongside the Petitioner on the subject scaffold, approximately seven other bricklayers also present at the site, the supervisor for Abax who was present at the site that day, as well as the employees who erected the scaffold. Clearly, Respondents' own site supervisors, inspectors and other employees present at the site are also available to testify regarding the worksite and the work performed. 5 The Proceedings, Rulings Below & Status of Related Litigation Immediately after being retained as counsel, your Affirmant served a Notice of Claim upon the Respondents on July 15, 2016. On this date, the Petitioner also commenced a lawsuit against Respondents in Supreme Court, Bronx County under index number 24778/2016 and filed an Order to Show Cause for leave to serve a late Notice of Claim against The City of New York, The New York City Department of Education and The New York City School Construction Authority under index number 24793/16. Respondents subsequently appeared and served an Answer. On September 9, 2016, Justice Mitchell J. Danzinger granted Petitioner- Appellant's motion for leave to serve a late Notice of Claim after reviewing the facts and circumstances of this case (R7). Petitioner-Appellant then filed a Request for Judicial Intervention and a Preliminary Conference was held on November 29, 2016. Subsequently, Respondents appealed Judge Danzinger's Decision and Order to the Appellate Division, First Department. The Appellate Division subsequently reversed the lower Court's ruling granting Petitioner leave to serve a late notice of claim in a decision and Order entered on May 25, 2017. As of the date of this letter, the main action pending in Supreme Court, Bronx County under index number 24778/2016 is currently stayed pending a resolution of the appeal in this matter. 6 The Reasons Why the Majority Was Wrong In Ruling As It Did Petitioner- Appellant relies upon well-established case law in support of his argument for permission to serve a late Notice of Claim pursuant to General Municipal Law §50(e). First, the factors used to determine whether leave to serve a late Notice of Claim should be permitted include (1) whether movant has demonstrated a reasonable excuse for failing to serve a timely Notice of Claim (2) whether the municipality, its attorney or insurance carrier acquired actual knowledge of the essential facts of the claim within the statutory period or a reasonable later time, and (3) importantly, whether the delay in filing the late Notice of Claim substantially prejudiced the municipality.4 Second, the Courts are clear that the aforementioned factors are non- exhaustive and that the Court may consider all relevant facts and circumstances of a case with the Court deciding how much weight it gives to any particular factor. 5 It is well established that the absence of any one factor, including reasonable excuse or actual knowledge, is not dispositive in deciding a motion to file a late Notice of Claim.6 4 General Municipal Law §50(e)(5); Matter of Thomas v. City of New York, 118 A.D.3d 537 (1st Dep't 2014); Porcaro v. City of New York, 20 A.D.3d 357 (1st Dep't 2005). 5 Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455 (2016). 6 Matter of Thomas v. City of New York, 118 A.D.3d 537 (l''Dep't 2014); Ansong v. City of New York., 308 A.D.2d 333 (1st Dep't 2003); Weiss v. City of New York, 237 A.D.2d 212 (1'' Dep't 1997); Chattergoon v. New York City Haus. Auth., 197 A.D.2d 397 (1st Dep't 1993). 7 Finally, it is well established that General Municipal Law § 50-e "is not intended to operate as a device to frustrate the rights of individuals with legitimate claims." Porcaro v. City of New York, 20 A.D.3d 357 (1'1 Dep't 2005). On the contrary, the Courts have held time and again that General Municipal Law §50(e) is a remedial statute to be liberally construed. 7 Applying these principles to the case at bar, Petitioner-Appellant established the requisite factors for serving a late notice of claim and Petitioner's opposition proof should have sufficed to require denial of Respondents' appeal. Reasonable Excuse- In the case at bar, Petitioner established a reasonable excuse for his failure to timely serve a notice of claim, namely that he was unaware of the nature and extent of his injuries until after the 90-day statutory period had expired. As the dissent correctly pointed out, unawareness of the seriousness and extent of one's injuries is a basis for finding a reasonable excuse for failing to timely serve a Notice of Claim. 8 Petitioner's first surgery was on November 11, 2015, outside of the 90-day statutory window. Furthennore, Petitioner's hip surgery was performed almost a year after the incident and only a week before he filed his application to serve a late Notice of Claim. Petitioner realized following his hip surgery that his career in construction was effectively over and that a 7 Matter o.fThomas v. City of New York, 118 A.D.3d at 538. 8 Porcaro v. City of New York, 20 A.D.3d 357 (1st Dept. 2005); Nayyar v. Board of Educ., 169 A.D.2d 628, 629 (1'1 Dep't 1991); Swensen v. New York, 126 A.D.2d 499, 501 (1'1 Dep't 1987). 8 lawsuit was necessary. While the majority, points to the fact that Petitioner filed a Workers' Compensation claim in this matter after the incident, this does not mean that Petitioner was aware of the seriousness and extent of his injuries during the requisite 90-day period. The mere fact that Plaintiff was hurt and filed a Workers' Compensation claim does not equate to Petitioner knowing during the statutory period that his injuries would be ongoing, would require multiple surgeries and would prevent him from returning to work over a year later. 9 Actual Knowledge- General Municipal Law §50e (5) specifically notes that the Court can evaluate whether the public corporation, its attorney or its insurance carrier received actual knowledge of the essential facts of the case during the statutory period or shortly thereafter. In the case at bar, Petitioner immediately notified his employer of the accident and his injuries and then filed a Worker's Compensation claim within weeks of the accident. Petitioner's employer named the New York City School Construction Authority as an additional named insured 9 While Petitioner did not attach medical records to his motion for leave to serve a late Notice of Claim, this was only because counsel was retained the same day that the application was made. Petitioner also did not realize a third-party claim was possible until after his hip surgery. While ignorance of the law is not a "reasonable excuse" under the law, Petitioner-Appellant asks the Court to consider the fact that Petitioner's delay in serving a Notice of Claim occurred because of his ignorance of his rights under the Labor Law. When the Petitioner realized, he had a potential third-party claim and that his injuries were significant, he sought legal advice and Notices of Claim, a Verified Complaint and the subject motion to file a late Notice of Claim were all filed the same day. While Respondents claim in their Appellate Reply Brief at pg. 11 that Petitioner admitted that his "excuse regarding medical incapacity was invalid," this is not what Petitioner stated in his opposition. As stated above and in-Petitioner's appellate opposition at pg. 8, Petitioner argued that ignorance of the law is typically not an excuse. Furthermore, Petitioner is not alleging medical incapacity but instead is claiming that he did not realize the seriousness and extent of his injuries during the statutory period. 9 under their liability and Workers' Compensation policies for the work performed at the LS. 339 worksite. 10 Accordingly, Respondents' insurance company and Respondents had notice of the incident, the nature of Petitioner's initial injuries and knowledge of the condition of the worksite. Furthermore, Respondents have offered no proof that they did not have actual knowledge of Petitioner's accident and his injuries during the 90-day period or that an investigation was not conducted. Respondents' appeal adduced no proof as to what Petitioner's employers relayed to higher ups at the site after Petitioner notified them of his accident. Clearly, Respondents had representatives at the site. Respondents representatives could have attached an affidavit regarding their knowledge of the incident or lack thereof, information which would be in their exclusive knowledge and control. If Respondents had no actual knowledge of this incident they would simply have attached the requisite proof to their papers rather than relying on the self-serving claims of defense counsel. With regards to this accident, the party in the best position to say whether they knew of the accident during the 90-day statutory period was Respondents themselves and they have failed to say anything at all. Instead we are asked to rely on assertions made only by Respondents counsel not Respondents themselves. Not only did counsel fail to attach any affidavits or evidence to their appeal, it is unknown if Respondent's 10 A copy of the Certificate of Liability Insurance is contained in the Appellate Record at R37. 10 counsel contacted anyone from the worksite with regards to the accident and the within motion. Substantial Prejudice- As stated above, the crucial factor in determining whether to grant an application to serve a late Notice of Claim, is whether the municipal entity has demonstrated substantial prejudice by the delay. 11 Recently, this Court addressed the issue of the burden of proof and the quality of proof necessary to show substantial prejudice to defeat an application for leave to file a late Notice of Claim. Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455 (2016). This landmark decision was glossed over in Respondents' appellate brief. Furthermore, the Appellate Division majority failed to apply the legal standards set forth in Newcomb to this action and has limited the application of Newcomb to a narrow group of General Municipal Law 50(e)(5) applications. 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. Id. Once Petitioner meets this burden, Respondents were 11 Matter of Newcomb, supra; Matter of Richardson v. New York City Haus. Auth., 136 A.D.3d 484, 485 (1'1 Dep't 2016); Porcaro v. City of New York, 20 A.D.3d 357 (1'1 Dep't2005). See also K.A. Wappingers Cent. Sch. Dist., 2017 N.Y. App. Div. LEXlS 4741 (2nd Dept. 2017). (finding Plaintiff demonstrated a lack of substantial prejudice pursuant to the showing required in Newcomb). 11 required to make a "particularized evidentiary showing" that they would be substantially prejudiced for the claim to be disallowed. Id. In Newcomb, this Court held "that a finding that a public corporation is substantially prejudiced by a late notice of claim cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence in the record." Matter of Newcomb, 28 N.Y.3d at 10. Importantly, the Court of Appeals also went on to hold that the passage of time alone will not constitute a showing of substantial prejudice without specific evidentiary proof and a showing of actual injury. see also Sarkisian Bros., Inc. v. State Div. of Human Rights, 48 N.Y.2d 816, 818 (1979). In Matter of Newcomb, this Court distinguished the difference between the mere inference of prejudice and providing specific evidentiary proof of prejudice noting that: "Although changes in personnel and the fading memories of witnesses may, in fact, be "prejudicial," a court must consider whether record evidence indicates that substantial prejudice does in fact exist. Providing proof of substantial prejudice on the record is qualitatively and quantitatively different from a mere inference of prejudice. Generic arguments and inferences will not establish "substantial prejudice" in the absence of facts in the record to support such a finding." Matter of Newcomb, 2016 NY Slip Op at 11. The Newcomb decision supports and expands on earlier caselaw which held that substantial prejudice will not be presumed by generic or conclusory allegations but instead must be demonstrated 12 by Respondent with specific evidence.12 Furthermore, a public corporation must show an actual attempt at investigation and an inability to do so in order to demonstrate substantial prejudice. 13 Since the Newcomb decision, the Appellate Courts have consistently upheld motions to file late notices of claim where Respondents fail to make a particularized evidentiary showing of prejudice pursuant to Newcomb. 14 In the instant action, the Appellate Division majority failed to follow the specific holdings set forth in Newcomb and held that Petitioner's reliance on the case was "misplaced" since Newcomb involved a case where Plaintiff had previously served other municipal entities with a Notice of Claim prior to seeking leave to serve a late Notice of Claim against the School District. In effect, the Appellate Division deemed Newcomb to apply only to the small subset of cases where other municipal defendants are timely served with a Notice of Claim. However, this Court's holding in Newcomb never limits its holding to such a limited group of General Municipal Law 50(e)(5) motions. The Appellate 12 Thomas v. New York City Haus. Auth., 132 A.D.3d 432 (1st Dep't 2015); Goodwin v. New York City Haus. Auth., 42 A.D.3d 63 (1st Dep't 2007). 13 Thomas, 132 A.D.3d at 434 (finding a lack of substantial prejudice where it was not established that Respondents investigated the subject stairwell); Goodwin, 42 A.D.3d at 68 (finding substantial prejudice was not demonstrated where the record lacked any evidence that Respondent NY CHA conducted or attempted to conduct an investigation). 14 Matter of Kerner v. County of Nassau, 150 A.D.3d 1234 (2nd Dept. 2017); Matter of Diegelman v. City of Buffalo, 148 A.D.3d 1692 (4th Dept. 2017); Brege v. Town of Tonawanda, 148 A.D.3d 1792 (4th Dept. 2017); Matter of Ramirez v. City ofNew York, 148 A.D.3d 908 (2nd Dept. 2017). 13 Division's failure to analyze the instant action pursuant to Newcomb is evidenced by the fact that, the majority failed to apply any of the dictates of Newcomb in evaluating whether Respondents were substantially prejudiced. Notably, while Respondents allege in their appellate Reply brief that m Newcomb, "the late notice, pertained only to an additional claim that sought to be added regarding the existence of a sign, and did not involve a wholly unknown and undocumented legal claim for which a litigant had no reasonable expectation that investigative efforts were required within the statutory period,"15 this is a complete misrepresentation of the facts of Newcomb. In Newcomb, Plaintiff did not seek to assert an additional claim against the School District- the School District had never been served at all during the statutory period. 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 the accident even occurring."16 The majority conflates the two separate factors of substantial prejudice and actual knowledge even though they are two separate factors to be evaluated by the Court individually. This is consistent with this Comt's holding in 15 See Respondents Reply Brief at pg. 5. 16 See the Appellate Division Decision and Order entered on May 25, 2017 which is annexed hereto. 14 Newcomb that even where actual knowledge may be lacking a municipal defendant may not be substantially prejudiced by the delay. 17 As stated above, Petitioner's burden in demonstrating a lack of substantial prejudice under Newcomb is very low, requiring only "some evidence or plausible argument." The majority opinion however failed to apply this legal standard to the case at bar and disregarded Newcomb 's mandates in their entirety. The Newcomb language was instead only contained in the dissent's opinion. In the instant action, Petitioner established that the subject scaffold was dismantled the same day as the incident and then went on to identify a series of specific photographs, construction documents and witnesses that would allow Respondents to investigate his accident. In response, Respondents not only made no "particularized evidentiary showing" of substantial prejudice pursuant to Newcomb, they made no showing at all. Respondents' counsel failed to attach any affidavits to their motion from a witness with knowledge and never alleged that an investigation was attempted and was unable to be carried out due to the delay as required under Newcomb. Respondents' counsel never indicated that any of the construction documents Petitioner identified in its papers were no longer in existence or that the aforementioned witnesses were unavailable or that their memories had faded. 18 17 Matter of Newcomb, 28 N.Y.3d at 456. 18 In Petitioner's application and affidavit, he identified several documents that would allow Respondents to reconstruct and investigate Petitioner's accident. These records include blue 15 It is also w01ih noting again, that unlike a claim for police misconduct which is purely municipal in nature, Petitioner's claims are for negligence and violations of the Labor Law which non-municipal defendants are required to defend themselves against every day when suit is brought within the 3-year statute of limitations. Respondents set forth no basis for alleging irreparable prejudice by Petitioner's 9-month delay, since Respondents are in possession of the very same construction records that a non-municipal defendant would utilize in any other litigation. As the dissent in the Appellate Division aptly indicated, these records would include daily work records, safety reports, logbooks and payroll records which would clearly be in Respondents possession or obtainable from Abax. 19 Respondents' argument that they are prejudiced by Petitioner's delay since they are not his direct employer is also disingenuous since they are the owners of the property, contracted with Petitioner's employer for the work and presumably had inspectors and other employees onsite to oversee the work. The majority and Respondents also fail to address the fact that Petitioner testified in his affidavit and set forth in his application, that the subject scaffold was dismantled at the end of work each day, an important fact which is addressed by the dissent. Clearly, Respondents would have been unable to inspect, measure prints, daily work records, photographs, inspection records, log books and the like. Notably, Petitioner has since located six photographs depicting the subject scaffold and worksite and promptly turned them over to Respondent prior to Petitioner's 50-h hearing. 19 See Appellate Division, First Department's Order entered on May 25, 2017. 16 or photograph the scaffold as it existed on the day of the accident, even ifthe Petitioner had filed his Notice of Claim the next day or at any time during the requisite 90-day statutory period. The Courts have held that when conditions are transitory in nature or the condition was altered during the statutory period, this must weigh against a finding of substantial prejudice, since the instrumentality could not have been examined even if timely notice had been given.20 While Respondents alleged in their reply brief that an examination of the dismantled scaffold could have "resulted in very significant information,"21 there was no proof or even a claim by Respondents' counsel that the dismantled scaffold no longer existed a year later, much less that anyone attempted to find it. 22 Since the scaffold was routinely dismantled at the end of the workday, Respondents cannot demonstrate any prejudice by the delay in inspecting the scaffold. 2° Camins v. New York City Housing Authority, 2017 N.Y. App. Div. LEXIS 4974 (Pt Dept. 2017); Matter of Caridi v. New York Convention Ctr. Operating Corp., 47 A.D.3d 526 (1st Dep't 2008) (granting Petitioner leave to serve a late Notice of Claim where a dangerous condition was highly transitory and Respondent would have been unable to inspect the condition even during the ninety-day Notice of Claim period); Gamoneda v. New York City Bd Of Educ., 259 A.D.2d 348 (1st Dep't 1999)(finding Respondents' claim that they were prejudiced is undermined by the fact that the ice that the Petitioner fell on was transitory in nature and would have been unavailable for inspection even if Petitioner had timely filed a Notice of Claim); Ferrer v. New York, 567 N.Y.S.2d 734 (1st Dep't 1991) (finding a lack of substantial prejudice where Petitioner fell on a pile of debris at a construction site and debris likely would not have remained for inspection until the end of the statutory period); Gerzel v. New York, 117 A.D.2d 549, 551 (1 Dep't 1986)(finding Respondent failed to demonstrate substantial prejudice since subject steps were repaired during statutory period and Respondents would not have been able to inspect the steps in their original condition even during the 90-day period). 21 See pages 7 and 8 of Respondent-Appellant's Brief in Reply. 22 In Newcomb, the Court of Appeals further upheld the principle that where facts are in the possession of a party, it is their burden to prove them. Accordingly, public corporations and municipal entities must demonstrate by admissible evidence that they have been substantially prejudiced. 17 Most concerning, and a crucial issue that was disregarded by the majority decision, is the fact that there is no evidence that Respondents' counsel ever contacted anyone from the City, DOE or the New York City School Construction Authority regarding Petitioner's motion or the accident or inquired as to whether any attempt at investigation was made. Petitioner-Appellant met his burden of establishing lack of substantial prejudice through his application and his affidavit which detail the construction of the subject scaffold, the fact that the scaffold was dismantled the same day as his accident, the numerous construction documents and photos in Respondents' and its contractor's possession which permit Respondents to reconstruct and investigate the accident, and the availability of numerous witnesses who can testify regarding the work site and Petitioner's injuries. In response, Respondents failed to meet their burden of establishing substantial prejudice by any evidentiary showing. Instead Respondents' opposition however, boils down to the "passage of time" argument that the Court of Appeals specifically rejected in Newcomb. 23 If municipal entities can meet their burden of establishing substantial prejudice with vague assertions, no supporting affidavits and no information about the specifics of 23 Matter of Richardson v. New York City Haus. Auth., 136 A.D.3d 484, 485 (1st Dep't 2016), Thomas v. New York City Haus. Auth., 132 A.D.3d 432 (1'1 Dep't2015); Matter of Lopez v. City of New York, 103 A.D.3d 567, 568 (1st Dep't 2013). 18 a subject location or Respondents relationship to it, it would render the "substantial prejudice" factor meaningless. In the instant action, the Appellate Division failed to apply the legal standards set forth in this Court's decision in Newcomb and improperly limited the scope of Newcomb to only a small subset of late Notice of Claim motions where other municipal entities are timely served with a Notice of Claim. As a result, the majority failed to evaluate the substantial prejudice factor pursuant to the legal standards set forth by the Court of Appeals. Accordingly, for the reasons set f011h above, Petitioner-Appellant respectfully requests that this Court affirm the lower Court's ruling granting Petitioner's motion for leave to serve a late Notice of Claim pursuant to General Municipal Law 50(e)(5). GJC:jm enclose. cc: Cornell Grace, P.C. Attorneys for Respondents-Respondents 111 Broadway, Suite 810 New York, New York 10006 (212)233-1100 19 COURT OF APPEALS OF THE STATE OF NEW YORK WORD COUNT CERTIFICATION Pursuant to 22 NYCRR § 500.ll(m) I hereby certify pursuant to 22 NYCRR § 500.1 l(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 5,853. Dated: New York, New York July 19, 2017 G~ annata, Esq. Gregory J. Cannata & Associates, LLP Attorneys for the Petitioner-Appellant 60 East 42°d Street, Suite 932 New York, New York 10165 (212) 553-9205 20