In the Matter of Ryszard Grajko, Appellant,v.City of New York, et al., Respondents.

Brief

N.Y.November 14, 2017

1 August 31, 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- referenced case. Previously, my office filed a letter submission pursuant to section 500.11 of the Court of Appeal’s Rules of Practice as well as a supplemental letter submission further 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. In Petitioner’s initial letter submission, we requested permission to submit a reply in response to Respondents’ submission. I write in reply to Respondents’ letter submission dated August 21, 2017 and respectfully request that this Court accept this further submission in furtherance of Petitioner-Appellant’s appeal. 2 This Court properly has subject matter jurisdiction of the within matter since the dissent in the Appellate Division First Department was on a question of law in Petitioner-Appellant’s favor. Despite Respondents’ claims to the contrary, the majority and dissent did not reach different conclusions after analyzing the facts of this case pursuant to the same legal standards. Instead, the majority and dissent in the Appellate Division First Department applied completely different legal standards when evaluating and analyzing this case thereby vesting this Court with subject matter jurisdiction. While Respondents claim that the Appellate Division majority merely “distinguished” the Newcomb case from the case at bar, this is contradicted by a plain reading of the Appellate Division’s decision wherein the majority claimed Petitioner’s reliance on Newcomb was “misplaced” because Newcomb was a case where “a timely notice of claim had already been filed against the other municipal defendants and the only question was whether to permit the filing against the school district.” Grajko v. City of New York, 150 A.D.3d 595, 596 (1st Dept. 2017). Any doubt that the majority found Newcomb to be inapplicable to the case at bar rather than merely distinguishable, is evidenced by the fact that the majority failed to adhere to or follow any of this Court’s mandates in Newcomb and also failed to apply the relevant burden shifting paradigm required by Newcomb as it pertained to the substantial prejudice factor. 3 Specifically, the majority failed to evaluate (1) whether Petitioner set forth “some evidence or plausible argument” that supports a finding that Respondents were not substantially prejudiced; and (2) whether Respondents made a “particularized evidentiary showing” of substantial prejudice in response. Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466 (2016). The relevant burdens set forth by this Court in Newcomb are crucial in determining whether Respondents were substantially prejudiced by Petitioner’s delay and the majority’s failure to properly weigh the parties’ respective burdens constitutes legal error. The majority also ignored Newcomb’s clear mandates regarding “mere passage of time” arguments as well as this Court’s holding regarding oppositions which are supported solely by an Affirmation of counsel.1 By contrast, the dissent analyzed this case pursuant to this Court’s dictates in Newcomb, repeatedly referencing this Court’s holding and its language throughout its dissent. Another question of law which is presented in this matter, and a fact that is totally disregarded in Respondents’ letter submission, is the fact that the majority decision repeatedly referenced whether Respondents were prejudiced by Petitioner’s delay in serving his notice of claim versus whether Respondents were substantially prejudiced. It is worth noting that, not only did the Appellate Division 1 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 N.Y.3d at 460. 4 majority apply the wrong legal standard in its analysis of this action, Respondents have also adopted this improper standard in its own opposition and letter submission. Notably, Respondents reference prejudice rather than the proper legal standard of substantial prejudice, no less than seventeen times throughout their own letter submission. Like the majority in the Appellate Division, Respondents reference a legal standard that is at odds with both General Municipal Law §50-e (5) as well as all existing case law. Importantly, the dissent in the Appellate Division utilized the proper legal standard of substantial prejudice when reaching its conclusion. Matter of Grajko v. City of N.Y., 150 A.D.3d 595, 598 (1st Dept. 2017). Respondents have also failed to address in their submission that the majority decision also improperly combined the factors of actual knowledge and substantial prejudice despite the fact that these two factors require separate legal analysis.2 Respondents claim in their submission that “where the proper legal standard is clear, and the dissent and majority disagree as to the sufficiency of the evidence in favor of a prima facie case, a question of law is not presented.” (Respondents’ submission at pgs. 2-3). However, as previously stated, this is not the situation in the case at bar. The majority and dissent did not reach different conclusions based merely on the “weight of the evidence presented.” (Respondents’ submission at pg. 2 Newcomb, 28 N.Y.3d 455 at 467. 5 5). Rather, different results were reached because the majority applied the wrong legal standards in evaluating whether Petitioner should be granted leave to serve a late notice of claim. The majority’s decision was at odds with this Court’s decision in Newcomb as well as General Municipal Law §50-e(5) and prior case law. It was only the dissent in this action which evaluated this case pursuant to the proper legal standards thereby finding in Petitioner’s favor. Accordingly, this Court properly has subject matter jurisdiction of the within action. In addition to Respondents’ submission regarding the Court’s jurisdictional inquiry, Respondents misrepresent several other important legal and factual issues in their submission. With regards to the issue of reasonable excuse, Respondents claim “a failure to appreciate the severity of an injury is not a sufficient excuse under New York Law.” (Respondents’ submission at 7). This is a patently false statement. The Courts have repeatedly recognized a party’s failure to appreciate the severity of an injury during the statutory period as a reasonable excuse for failing to timely file a notice of claim.3 Notably, nowhere in Matter of Casale v. City of New York, 95 A.D.3d 744 (1st Dept. 2012), which is cited by Respondent and the majority decision, does the court address the issue of failing to appreciate the severity of an injury nor does the Court hold that it is an insufficient excuse. Instead, Matter of Casale, addresses a situation where a Petitioner claimed his 3 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 (1st Dep’t 1991); Swensen v. New York, 126 A.D.2d 499, 501 (1st Dep’t 1987). 6 injuries physically prevented him from filing his notice of claim. Both Respondents and the Appellate Division majority confuse the excuse of physical incapacity with Petitioner’s claim that he did not appreciate the severity of his injury during the relevant 90-day statutory period. Accordingly, Matter of Casale is inapplicable to the case at bar. With regards to Respondents’ claims regarding the substantial prejudice factor, Respondents again mispresent the First Department’s evaluation and analysis of the same. Respondents’ claim in their letter submission that “here, the appellate court concluded both that the Appellant failed to adequately establish prejudice and that clear and explicit prejudice to the municipal defendants existed in the record.” (Respondents’ submission at 11). In addition to confusing the respective aims of the parties, Respondents’ statement is obviously incorrect for several reasons. First, under Newcomb Petitioner is required to demonstrate a lack of substantial prejudice only “by some evidence or plausible argument,” a reduced burden which was not applied by the majority. Newcomb, 28 N.Y.3d at 466. Second, like the Appellate Court, Respondents keeps shifting the relevant legal inquiry from substantial prejudice as required under General Municipal Law §50- e(5) to merely prejudice. Third, it was improper for the Appellate Division majority to find “clear and explicit” prejudice to Respondents since (1) prejudice is the wrong legal standard; and (2) Respondents’ opposition contained no record 7 evidence that substantial prejudice actually existed other than defense counsels self-serving statements. As stated in Petitioner’s earlier submissions, Respondents arguments regarding actual knowledge and prejudice are based solely on the unsupported musings of counsel. While Respondents assert in their submission that that they could not “submit an affidavit that adequately set forth steps taken to investigate Mr. Grajko’s claims, when it never had notice of his claims until the service of his late Notice of Claim over a year after his accident,” this misstates Petitioner’s argument as well as the evidentiary showing which is required by Respondents (Respondents’ submission at 10).4 In response to Petitioner’s motion, Respondents were required to provide an affidavit or evidence from someone with knowledge of the worksite as to when they acquired knowledge of the facts underlying Petitioner’s claim and to also provide evidence as to why Respondents were substantially prejudiced by Petitioner’s delay. Counsel’s claims that Respondents were unaware of the incident until receiving the notice of claim and that documentary evidence was unavailable to Respondents are nothing more than the uncorroborated allegations of defense counsel. To date, there is no evidence that upon receiving petitioner’s motion to file a late notice of claim, Respondents’ counsel ever contacted anyone from the 4 Petitioner’s Notices of Claim were served on July 15, 2016, one year after the incident. 8 subject worksite or any of Respondents’ employees to inquire about their knowledge of the incident, the work performed at the site or to inquire as to what documents, photographs and statements Respondents possessed. Notably, there is also no evidence that Respondents ever even attempted an investigation upon receiving Petitioner’s notice of claim let alone that they were substantially prejudiced in their ability to do so. Respondents also fail to acknowledge the importance of the fact that the subject scaffold was dismantled at the end of the work day. This fact is not “speculative” as Respondents assert nor has this fact been contested by Respondents’ employees or anyone else with knowledge of the worksite. The General Municipal Law did not require Petitioner to immediately notify Respondents of the incident on the same day of his injury prior to the dismantling of the subject scaffold. Instead, Petitioner had 90-days in which to serve a notice of claim. Accordingly, Respondents were in no worse of a position to inspect the subject scaffold when they received Petitioner’s Notice of Claim in July of 2016 than they would have been in the days immediately following Petitioner’s accident. In the instant action, Petitioner set forth numerous arguments demonstrating a lack of substantial prejudice which Respondents have failed to refute with any affidavits or evidence. 9 Conclusion 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, ________________________ Gregory J. Cannata GJC:jm cc: Cornell Grace, P.C. Attorneys for Respondents-Respondents 111 Broadway, Suite 810 New York, New York 10006 (212)233-1100 10 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 reply submission 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 1819. Dated: New York, New York August 31, 2017 _______________________________ Gregory J. Cannata, Esq. Gregory J. Cannata & Associates, LLP Attorneys for the Petitioner-Appellant 60 East 42nd Street, Suite 932 New York, New York 10165 (212) 553-9205