In the Matter of Ryszard Grajko, Appellant,v.City of New York, et al., Respondents.BriefN.Y.Nov 14, 2017To be Argued by: KEITH D. GRACE Bronx County Clerk's Index No. 24793/16 New lnrk ~upremt Qtnurt i\pp.ellat.e iiutsinn-JJZirst i.epartm.ent In the Matter of the Application of RYSZARD GRAJKO, Petitioner-Respondent, - against- THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF EDUCATION and THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, Respondents-Appellants. BRIEF FOR RESPONDENTS-APPELLANTS Of Counsel: KEITH D. GRACE PORSHA R. JOHNSON .,, PRINTED ON RECYCLED PAPER ~,;9 CORNELL GRACE, P.C. Attorneys for Respondents-Appellants 111 Broadway, Suite 810 New York, New York 10006 (212) 233-1100 kgrace@comellgrace.com TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 QUESTION PRESENTED ........................................................................................ 2 STATEMENT OF THE CASE .................................................................................. 3 ARGUMENT ............................................................................................................. 5 POINT I THE LOWER COURT ERRED IN GRANTING PETITIONER- RESPONDENT LEA VE TO FILE A LATE NOTICE OF CLAIM BECAUSE PLAINTIFF DID NOT SET FORTH A LEGALLY COGNIZABLE EXCUSE FOR HIS DELAY ................................................ 6 POINT II DEFENDANTS-APPELLANTS HAD NO NOTICE OF PETITIONER-RESPONDENT'S LEGAL CLAIMS PRIOR TO EXPIRATION OF THE STATUTORY PERIOD .......................................... 9 POINT III THE LOWER COURT ERRED IN GRANTING THE PETITIONER-RESPONDENT LEA VE TO FILE A LATE NOTICE OF CLAIM AS THE DEFENDANTS-APPELLANTS HAVE BEEN IRREPARABLY PREJUDICED BY THE DELAY ............. 13 CONCLUSION ........................................................................................................ 17 TABLE OF AUTHORITIES Page(s) Cases: Adkins v. City of New York, 43 N.Y.2d 346 (1977) .................................................................................. 3, 6 Aviles v. New York City Health and Hospitals Corp., 172 A.D.2d 237 (1st Dep't 1991) ............................................................ 2, 6, 8 Borrero v. New York City Housing Authority, 134 A.D.3d 1104, 22 N.Y.S.3d 540 (2d Dep't 2015) ..................................... 8 Burns v. New York City Transit Auth., 213 A.D.2d 300 (1st Dep't 1995) .................................................................. 11 Casale v. City of New York, 95 A.D.3d 744, 945 N.Y.S.2d 92 (1st Dep't 2012) ..................................... 7, 8 Casias v. City of New York, 39 A.D.3d 681 (2d Dep't 2007) ....................................................................... 8 Chattergoon v. New York City Housing Authority, 161A.D.2d141 (1st Dep't 1990), ajf'd, 78 N.Y.2d 958 (1991) ... 2-3, 6, 9, 12 Cruz v. New York City Housing Authority, 269 A.D.2d 108, 702 N.Y.S.2d 284 (1st Dep't 2000) ................................... 13 Gold v. City of New York, 80 A.D.2d 138 (1st Dep't 1981) .................................................................... 10 Gonzalez v. City of New York, 127 A.D.3d 632, 8 N.Y.S.3d 290 (1st Dep't 2015) ......................................... 8 Kim v. City of New York, 256 A.D.2d 836, 81N.Y.S.2d247 (1st Dep't 1998) ....................................... 9 Kuterman v. City of New York, 121A.D.3d646 (2d Dep't 2014) ................................................................... 10 Martin v. City of New York, 100 A.D.2d 879 (2d Dep't 1984) ................................................................... 16 Matter of 390Newcomb v. Middle Country Cent. Sch. Dist., 2016 N.Y. Slip Op. 08581 (December 22, 2016) .................................... 15-16 11 Matter of Morrison v. New York City Health and Hospitals Corp., 244 A.D.2d 487, 664 N.Y.S.2d 342 (2d Dep't 1997) ................................... 12 Matter of Rebecca Felice, etc., et al. v. Eastport/South Manor Central School District, 50 A.D.3d 138 (2d Dep't 2008) ..................................................................... 13 Negron v. New York City Health and Hospitals Corp., 262 A.D.2d 217, 691 N.Y.S.2d 770 (1st Dep't 1999) ................................... 12 Olivera v. City of New York, 270 A.D.2d 5 (1st Dep't 2000) ................................................................ 11-12 Perez v. City of New York, 41A.D.3d378 (1st Dep't 2007) .................................................................... 10 Phillips v. City of New York, 98 Misc. 2d 1124 (Civ. Ct. N.Y. Co. 1979) .................................................... 6 Plummer v. New York City Health & Hosps. Corp., 98 N.Y.2d 263 (2002) .................................................................................... 15 Rodriguez v. City of New York, 86 A.D.2d 533, appeal dismissed, 58 N.Y.2d 899 (1st Dep't 1981) ....................................................................................... 2, 6, 7 Rodriguez v. New York City Bd. of Educ., 190 A.D.2d 579 (1st Dep't 1993) .................................................................. 12 Smith v. City of New York, 997 N.Y.S.2d 101, 44 Misc. 3d 1203(A) (NY Sup. Ct., June 23, 2014) .......................................................................... 7 Tavarez v. City of New York, 810 N.Y.S.2d 65 (1st Dep't 2006) ................................................................. 16 Thomann v. City of Rochester, 256 N.Y. 165 (1931) ...................................................................................... 10 Thompson v. City of New York, 95 A.D.3d 1024 (2d Dep't 2012) ................................................................... 10 Vitale v. City of New York, 205 A.D.2d 636 (2d Dep't 1994) ................................................................... 13 Walker v. New York City Transit Auth., 266 A.D.2d 54 (1st Dep't 1999) .................................................................... 11 111 Washington v. City of New York, 72 N.Y.2d 881 (1988) ...................................................................................... 9 Statutes & Other Authorities: Education Law § 3183(2) ......................................................................................... 10 G.M.L. § 50-e ................................................................................................... 4, 8, 12 G.M.L. § 50-e(5) .................................................................................................... 6, 9 G.M.L. § 50-h ............................................................................................................ 4 Labor Law§ 200 ........................................................................................................ 4 Labor Law§ 240 ........................................................................................................ 4 Labor Law§ 241(6) ................................................................................................... 4 New York City Charter§ 521(b) ............................................................................. 10 lV PRELIMINARY STATEMENT This appeal was brought to rectify an incorrect lower court ruling that permitted a Petitioner-Respondent to proceed with a late and prejudicial claim against the Respondent-Appellant municipal entities. Pursuant to General Municipal Law §50-e the Petitioner-Respondent was required by law to file a notice of claim with the municipal defendants-appellants within ninety (90) days of his alleged incident. The Petitioner-Respondent did not do so, but rather waited over nine months after the expiration of the 90 day deadline and over one year after the date of his alleged injury to request leave to file a late notice of claim. The Petitioner-Respondent provided absolutely no legally justifiable excuse for failing to timely file his claim, and failed to submit any evidence to establish he was physically, mentally or otherwise incapacitated and incapable of meeting his filing deadline. He failed to establish and prove by sufficient evidence that the Defendants-appellants had notice of his legal claims (which they did not until one year after his accident), and failed to show that the Defendants-Appellants were not prejudiced by his delay. Despite the utter failure of the Petitioner-Respondent to meet its legal burden, the lower Court inexplicably granted the Petitioner-Respondent's request. It is well understood that this Court does not lightly reverse lower courts decisions. This Court, however, certainly has the power to do so, and has done so countless times 1 where warranted and necessary in the interest of justice. Defendants-Appellants respectfully submit that this is such a case. The lower Court failed to correctly apply settled, controlling New York Law which should have resulted in dismissal. The lower court's ruling and its inability to correctly apply a petitioner's burden, should thus be reversed, and dismissal granted to Defendants-Appellants in this action. QUESTION PRESENTED Whether the lower court abused its discretion m granting Plaintiff- Respondent' s motion for leave to file a late notice of claim, when Petitioner- Respondent failed to submit a sufficient, legally cognizable excuse for the delay, failed to establish that the Respondent-Appellants had notice of Plaintiffs - Respondent's legal claim and were not prejudiced by Petitioner-Respondent's delay. Defendant- Appellants respectfully submit that the answer is yes. In assessing a petition seeking to serve a late Notice of Claim, the Court must consider: (1) whether plaintiff proffered a sufficient excuse for the delay; (2) whether the municipality had actual notice of the underlying facts constituting the claim within the 90 day period, and (3) whether the municipality is prejudiced by the untimely Notice of Claim. Rodriguez v. City of New York, 86 A.D.2d 533, appeal dismissed, 58 N.Y.2d 899 (1st Dep't 1981); Aviles v. New York City Health and Hospitals Corp., 172 A.D.2d 237, 238[lst Dep't 1991]); Chattergoon v. New York 2 City Housing Authority, 161 A.D.2d 141 (1st Dep't 1990), aff'd, 78 N.Y.2d 958 (1991); Adkins v. City of New York, 43 N.Y.2d 346, 350 [1977]. In the present case, Plaintiff-Appellant did not meet his burden and the lower court erred granting him leave to file a late notice of claim. The Petitioner- Respondent failed to submit any evidence of a reasonable excuse for his delay, and did not provide evidence that the Respondent-Appellants had notice of his legal claim. Neither did the Petitioner-Respondent establish that the Respondent- Appellants were not prejudiced by the delay, especially whereas here, the work conditions that existed at the time of the Petitioner-Respondents incident no longer exist, and the mechanism of injury the plaintiff alleges caused his accident has since been dismantled. STATEMENT OF THE CASE On July 15, 2015, Plaintiff-Appellant Ryszard Grajko alleges that he sustained two injuries while employed by ABEX Inc. as a bricklayer at a jobsite located at IS 339, 1600 Webster Avenue, Bronx, New York. (R 30) The first, a shoulder injury, he allegedly sustained while transporting buckets of bricks and mortar. The second injury Mr. Grajko allegedly sustained after tripping on the board of a scaffold platform. (R 31 ). Mr. Grajko purports to have reported his injuries to his employer ABEX Inc. on the date of his incident. (R23) However, neither correspondence nor an accident 3 report or incident report reflecting this was not provided. The only "report" generated as the result of his claim that was submitted in support of his application, was dated July 28, 2015, 13 days after his alleged injury. (R 34-35). The report was not an investigative report of the accident, but rather a notice of plaintiffs claim to the workers compensation board. (R34).The report stated only that Mr. Grajko sustained a "strain or injury" to the shoulder from "lifting." (R34-35). The report made no reference to plaintiffs alleged second injury from a trip and fall on the scaffold platform. (R 34-35). Defendant - Appellants did not receive notice of the claimant's injury until July 15, 2016, after receipt of a document purporting to be a Notice of Claim against the Respondents. The Notice of Claim dated July 15, 2016, was served over nine months after the Notice of Claim deadline. 1 (R38-40). Defendant - Respondents, remained unaware of plaintiffs accident, injuries, and claims for over one year. The Notice of Claim, received one year after plaintiffs 1 Simultaneously with the untimely Notice of Claim, the Petitioner-respondent served a Summons and Complaint, which asserted claims for violation of Labor Law sections 240, 241 ( 6) and 200. (R51) The untimely Notice was a legal nullity, and the improper Complaint was filed in violation of General Municipal Law sections 50-e and 50-h. 4 accident, was the first time the Defendants-Appellants were notified that Mr. Grajko alleges he sustained injury on a temporary scaffold. (R-39). It was also at that time that Defendants-Appellants learned that the scaffold was dismantled and/or removed before the Defendants-Appellants were notified of Mr. Grajko's injury and claims (R3 l ). Defendants-Appellants remained unaware of Petitioner-Respondent's allegations of Labor Law violations and injury on a scaffold, until receipt of the Notice of Claim. Defendants-Appellants were afforded no opportunity to investigate, validate or repudiate Mr. Grajko's claims. The lower Court granted Plaintiff-Appellant's motion for leave to serve a late notice of claim, stating only that "sufficient cause has been demonstrated to warrant said relief." (R7) As set forth more fully below, Defendants-Appellants assert that the decision of the lower Court was in error. Petitioner-Respondent did not provide a reasonable excuse for his delay that is recognized by New York Law, and provided no evidence that the Respondent-Appellants had notice of the Petitioner- Respondent's claims or was not prejudiced for his extreme delay. Petitioner- Respondent did not meet his burden to warrant the relief granted. ARGUMENT The Court is vested with discretion to extend the time to file a Notice of Claim. In assessing a petition seeking to serve a late Notice of Claim, a Court will consider: ( 1) whether plaintiff proffered a sufficient excuse for the delay; (2) whether the 5 municipality had actual notice of the underlying facts constituting the claim within the 90 day period, and (3) whether the municipality is prejudiced by the untimely Notice of Claim. Rodriguez v. City of New York, 86 A.D.2d 533, appeal dismissed, 58 N.Y.2d 899 (1st Dep't 1981); Aviles v. New York City Health and Hospitals Corp., 172 A.D.2d 237, 238 (1st Dep't 1991); Chattergoon v. New York City Housing Authority, 161A.D.2d141 (1st Dep't 1990), ajf'd, 78 N.Y.2d 958 (1991); Adkins v. City of New York, 43 N.Y.2d 346, 350 (1977). The fact that discretion is granted does not dictate that every application for such relief is allowed. In absence of compelling circumstances, the Court has held that parties must be bound to the 90-day frame work as set forth by the legislature. Phillips v. City of New York, 98 Misc.2d 1124, 1126, (Civ. Ct. N.Y. Co. 1979). Here, plaintiff failed to present any compelling circumstances warranting relief. As such, the Court erred in granting the Petitioner-Respondent leave to file a late notice of claim. POINT I THE LOWER COURT ERRED IN GRANTING PETITIONER-RESPONDENT LEA VE TO FILE A LATE NOTICE OF CLAIM BECAUSE PLAINTIFF DID NOT SET FORTH A LEGALLY COGNIZABLE EXCUSE FOR HIS DELAY In order to obtain leave to serve a late Notice of Claim under G.M.L. §50- e( 5), the party seeking leave must proffer a satisfactory excuse for not serving a 6 timely Notice of Claim and for the subsequent delay in filing an application to the Court for leave to serve a late Notice of Claim. Smith v. City of New York, 997 N.Y.S.2d 101, 44 Misc.3d 1203(A) (NY Sup. Ct., June 23, 2014, Hon. Mitchell J. Danziger, J.); Rodriguez v. City of New York, 86 A.D.2d 533, appeal dismissed, 58 N.Y.2d 899 (1st Dep't 1981). In his application for leave, the petitioner-respondent essentially claimed that his ignorance of the law and the severity of his injuries prohibited him from seeking to timely notify the parties of his claim. (R3 l) He alleged that he, "did not realize how seriously [he] was injured," and did not realize that a third party lawsuit would "protect his rights." (R31) Further, he "did not immediately understand the nature and extent of his injuries," and was unable to recognize that "third party suit [was] necessary." (R26) This excuse is not valid in the State ofNew York, and is not a sufficient excuse for filing an untimely claim. "Physical incapacity" is only a cognizable excuse for failure to timely file a notice of claim, if such incapacity is established through the use of medical evidence. Casale v City of New York, 95 A.D.3d 744, 945 N.Y.S.2d 92 (1st Dep't 2012). The lower Court, in granting the Petitioner-Respondents request for leave, indicated that the Petitioner-Respondent showed "sufficient cause to warrant said 7 relief," but failed to indicate how that relief was obtained without providing any evidence to satisfy his burden. Affidavits, medical records, and other evidence is required in order to prove that the petitioner could not abide by the filing deadline. Matter of Casale v City of New York, 95 A.D.3d 744, 945 N.Y.S.2d 92 (1st Dep't 2012); Borrero v. New York City Housing Authority, 134 A.D.3d 1104, 22 N.Y.S.3d 540 (2nd Dep't 2015); Gonzalez v. City of New York, 127 A.D.3d 632, 8 N.Y.S.3d 290 (1st Dep't 2015). Here, the Petitioner-Respondent failed to submit any evidence in this regard, (other than his own self-serving affidavit) making the grant of leave improper. Aviles v. New York City Health and Hospitals Corp., 172 A.D.2d 237, 238 (1st Dep't 1991). The absence of a reasonable excuse for the delay warrants dismissal of the application. Id. Ignorance of the law, and a lack of knowledge regarding a person's right to sue is no excuse for failing to comply with the mandates of GML §50-e. Here, the Petitioner-Respondent simply failed to abide by the statutory deadline and did not provided a proper excuse warranting waiver of his obligations. The lower Court erred in granting the Petitioner-Respondent's request without proof of a legally cognizable excuse for the Petitioner-Respondent's delay. Dismissal of his request for leave on these grounds alone, is proper. Casias v. City of New York, 39 A.D.3d 681 (2nd Dep't 2007). 8 POINT II DEFENDANTS-APPELLANTS HAD NO NOTICE OF PETITIONER-RESPONDENT'S LEGAL CLAIMS PRIOR TO EXPIRATION OF THE STATUTORY PERIOD The lower court's analysis of whether the Petitioner-Respondent was entitled to leave to file a late notice of claim was further in error in that it failed to recognize that the Defendants-Appellants had no notice or knowledge of the Petitioner- Respondents claim until a year after his accident. GML 50-e (5) provides that in determining whether leave is proper, the Court consider whether the public corporation acquired actual knowledge of the claim within the 90-day framework or a reasonable time thereafter. The Court defines "actual knowledge" as awareness of the essential facts constituting a legal claim, not just awareness of an incident. Kim v. City of New York, 256 A.D.2d 836, 81 N.Y.S.2d 247 (1st Dept. 1998); Chattergoon v. New York City Housing Auth., 161A.D.2d141 (1st Dep't 1990), ajf'd, 78 NY2d 958 (1991). Plaintiff has the burden of establishing that the Respondent-Appellants had notice of his claim. Washington v. City of New York, 72 N.Y.2d 881 (1988). Here, the Petitioner-Respondent utterly failed to meet this burden. The Petitioner-Respondent alleged that the defendants-appellants had notice of his legal claims, by virtue of a report of injury submitted to the Workers 9 Compensation Board. (R 26) At the outset, it must be noted that The City of New York, The Department of Education of the City of New York, and The School Construction Authority are all separate legal entities, independent and distinct from one another, and certainly legally and functionally independent from the Workers Compensation Board. Notice to the Workers Compensation Board, a separate and distinct entity from the defendant-respondents, does not impute knowledge to the Respondent-Appellants. Perez v. City of New York, 41A.D.3d378 (1st Dep't 2007); Goldv. City of New York, 80 A.D.2d 138 (1st Dep't 1981); New York City Charter § 521 (b ); Education Law § 3183 (2). It is not sufficient to assert that by virtue of the petitioner's First Report of Injury to the Workers Compensation Board, the Respondent-Appellants: the City of New York, the New York City Department of Education, and the New York City School Construction Authority, obtained notice of labor law and negligence claims against them. Thomann v City of Rochester, 256 N.Y. 165, 172 (1931). Moreover, for a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation. Kuterman v. City of New York, 121 A.D.3d 646 (2nd Dept. 2014); see also Thompson v. City of New York, 95 A.D.3d 1024 (2nd Dept. 2012). The document Petitioner-Respondent relies upon, does not place the Respondents on notice of any of plaintiff's Labor Law claims. The report 10 does not indicate how the accident occurred and does not reference any injury other than a "shoulder strain." (R35) Nothing in the report indicates that plaintiff was injured by the failure to provide a hoist or bucket, or that mechanical means of transporting materials should have been provided to the Petitioner-Respondent. Most importantly, the report made no reference or claim that plaintiff tripped and fell on a scaffold, and does not contain any facts that would suggest that an investigation of the scaffold and its construction should have occurred. (R34-36). The report does not even reference a scaffold, or that the mechanism of injury was unlevel and/or raised platform boards. The "notice" that Petitioner-Respondent relies upon is a report of injury filed 2 weeks after the petitioner was allegedly injured. (R34) Although the Petitioner- Respondent alleges that notice was provided to his employer on the same day of his injury, he failed to produce any documentation or evidence reflecting that his employer, ABEX Inc., acknowledged or investigated his accident. Neither did the Petitioner-Respondent provide any evidence that the employer provided notice of Petitioner-Respondent's injury or accident to the Respondent-Appellants. The document or record relied upon to establish knowledge on the part of the municipality must connect the occurrence with the alleged negligence by the public corporation. Walker v. New York City Transit Auth., 266 A.D.2d 54 (I st Dep't 1999); Burns v. New York City Transit Auth., 213 A.D.2d 300 (1st Dep't 1995); Olivera v. 11 City of New York, 270 AD2d 5 (1st Dep't 2000) Negron v. New York City Health and Hospitals Corp, 262 A.D.2d 217, 691 N.Y.S.2d 770 (1st Dep't 1999); Matter of Morrison v. New York City Health and Hospitals Corp., 244 A.D.2d 487, 489 664 N.Y.S.2d 342 (2nd Dep't 1997). Absent a direct connection between the happenings of the accident and the specific legal claim, a report will not provide notice sufficient to overcome the mandates of GML §50-e. Rodriguez v. New York City Bd. of Educ., 190 A.D.2d 579 (1st Dept. 1993); Chattergoon v. New York CityHousingAuth., 161 A.D.2d 141, 142, 554 N.Y.S.2d 859 (lst Dep't 1990). Here, the Petitioner-Respondent utterly failed to establish that the defendants- respondents had notice of his legal claims. The document the Petitioner-Respondent relies upon was provided two weeks after his injury, to an entity in no way affiliated to the defendant-respondents. Further, the document did not fully describe the Petitioner-Respondents claimed injuries and was completely silent to the Petitioner- Respondents trip and fall claim and the mechanism of the claimed injury. It was impossible for the document to provide notice of a legal claim it made no reference to, and could not provide notice to an entity that the document was never provided to. Simply stated, the Defendants-Appellants did not, and could not have had notice of Petitioner-Respondents legal Labor Law claims regarding a trip and fall on a scaffold, from a document submitted to the workers compensation board referencing 12 a shoulder "strain." The lower Court erred in granting Petitioner-Respondent leave based upon this flawed evidence. POINT III THE LOWER COURT ERRED IN GRANTING THE PETITIONER-RESPONDENT LEA VE TO FILE A LATE NOTICE OF CLAIM AS THE DEFENDANTS- APPELLANTS HAVE BEEN IRREPARABLY PREJUDICED BY THE DELAY The purpose of the notice of claim requirement is to permit the municipality entity to conduct a prompt investigation of the facts and circumstances out of which a claim arose while information is still fresh and readily available. Cruz v. New York City Housing Authority, 269 A.D.2d 108, 702 N.Y.S.2d 284 (1st Dept. 2000). Prejudice indisputably exists when a municipal entity is not afforded the opportunity to conduct an early investigation and create an accurate recitation of the events existing at the time the incident occurred. Vitale v. City of New York, 205 A.D.2d 636 (2d Dept. 1994). Prejudice resulting from a petitioner's delay in timely filing is presumed, and it is up to the petitioner to dispel that presumption. The burden of establishing prejudice does not lie with the Respondents. Matter of Rebecca Felice, etc., et al., v. Eastport/South Manor Central School District, 50 A.D.3d 138, 152 (2nd Dept. 2008) ("[A] claimant seeking leave to serve a late notice of claim pursuant to General Municipal Law§ 50-e (5) bears the burden of showing that the 13 delay will not substantially prejudice the public corporation in maintaining its defense on the merits (internal citations omitted)). The danger in failing to provide timely notice is evident here. The condition the Petitioner-Respondent bases his complaint upon was transitory in nature. The scaffold was a temporary structure and was removed and/or altered sometime after plaintiffs claimed incident. (R31) The work in which the petitioner was performing was completed, and the conditions under which the petitioner worked have completely changed. The opportunity to make an investigation of the claim and the scaffold and conditions under which Petitioner-Respondent worked is lost. The evidence in this case establishes that the Respondent-Appellants are prejudiced. By Petitioner-Respondent's own admission, the conditions that allegedly caused his accident were changed prior to the Respondent-Appellants receiving notice of his accident. (R31) Had the Respondent-Appellants been properly advised of plaintiffs incident, they would have been afforded the opportunity to inspect the scaffold at issue. They could have requested that the scaffold not be removed, or inquired and investigated its installation and use. Had the Defendants-Appellants been notified of plaintiffs incident earlier, proper inquiry into the manner of work being performed could have been done and a proper safety report and investigation could have been completed. 14 Although the claimant alleges that construction records pertaining to the work site may be available, said records will not provide any insight into the happenings of plaintiffs accident. Records reflecting the general work performed at a job site are completely irrelevant to the specific work being performed by plaintiff at the time of his accident, especially whereas here, none of the Defendant-Respondents were plaintiffs direct employer. All of the aforementioned indisputably prejudices the Respondent-Appellants, who are now required to defend against a claim without having an opportunity to investigate and secure necessary evidence. The Respondent-Appellant's lack of notice of this claim, and the changed work conditions that resulted, are harms that are not concrete and cannot be overcome. A Court's determination must be supported by record evidence, and the lower Court erred in awarding Petitioner- Respondent leave. Plummer v. New York City Health & Hasps. Corp., 98 NY2d 263, 268 (2002). The Petitioner-Respondent did not competently meet his burden to establish that the Respondent-Appellants were not prejudiced by his failure to timely file a claim. To the contrary, his affirmation provided particularized evidence which supports the Respondent-Appellants in establishing that they did not receive an opportunity to properly investigate the scaffold, his work conditions and other legal claims. See, Matter of 390Newcomb v. Middle Country Cent. Sch. Dist. (2016 NY 15 Slip Op 08581, December 22, 2016). By his own admission, he was injured, did not report the claim the day of his injury, (R 30-31) and permitted the scaffold, the alleged mechanism of injury, to be dismantled and removed prior to any inspection. (R31). Now the Respondent-Appellants are faced with the prejudice of having to defend against a claim that occurred over a year ago, when no investigation has occurred. This harm flows directly from plaintiffs failure to timely file, and can never be cured. See, Tavarez v. City of New York, 810 N.Y.S.2d 65 (1st Dept. 2006). The lower Court's ruling granting leave to file a late notice of claim circumvented the purpose of the statue and was clearly erroneous. Martin v. City of New York, 100 A.D.2d 879 (2d Dep't 1984). The decision should be reversed. 16 CONCLUSION Defendants-Appellants were entitled to dismissal of Petitioner-Respondent's complaint. For the reasons set forth above, Defendants-Appellants respectfully request that this Court reverse the lower Court's ruling, and dismiss plaintiffs complaint in its entirety. Dated: New York, New York December 29, 2016 Of Counsel: Keith D. Grace Porsha Johnson Respectfully submitted, By~l_C:O POfShaJ()hn;)11 CORNELL GRACE, P.C. Attorneys for Defendants-Appellants 111 Broadway, Suite 810 New York, New York 10006 (212) 233-1100 17 APPELLATE DIVISION - FIRST DEPARTMENT PRINTING SPECIFICATIONS STATEMENT I hereby certify pursuant to 22 NYCRR § 600.10 that the foregoing brief was prepared on a computer using Microsoft Word. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double Word Count. The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service and this Statement is 3,750. Dated: New York, New York December 29, 2016 PORSHA JOHNSON CORNELL GRACE, P.C. Attorneys for Respondents-Appellants 111 Broadway, Suite 810 New York, New York 10006 (212) 233-1100 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX -------------------------·----------------------------------)( In the Matter of the Application of RYSZARD GRAJKO, Plaintiff, -against- THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF EDUCATION and THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY Defendants. ------------------------------------------------------------)( Index No.: 24793/16 DEFENDANTS-APPELLANTS' PRE-ARGUMENT STATEMENT In compliance with §600.17 of the rules of the Appellate Division, First Department (22 NYC RR §600.17), Defendants-Appellants submit the following statement: Title of Action: Origini,ll Parties: Counsel for Appellants: (:ounseJ for Respondent: As set forth above. Plaintiff- Ryszard Grajko Defendants- City of New York, New York City Department of Education and the New York City School Construction Authority Keith D. Grace, Esq. Porsha R. Johnson, Esq. CORNELL GRACE, P.C. 111 Broadway, Suite 810 New York, New York 10005 (212) 233-1100 Jennifer Mathew, Esq. GREGORY J. CANNATA & ASSOCIATES, LLP 60 East 42nct Street, Suite 932 New York, New York 10165 (212) 553-9205 Appeal from: Nature of Action: Result Below: Grounds for Seeking Reversal: Those portions of the Decision and Order of the Hon. Mitchell J. Danziger, J.S.C. which granted plaintiffs leave to file a Late notice of Claim pursuant to General Municipal Law §50(e). Labor Law §200, §240(1), §241(6) and common law negligence. The Decision and Order of the Hon. Mitchell J. Danziger granted Plaintiff- Respondent's leave to file a late Notice of Claim pursuant to General Municipal Law §50(e). The Supreme Court improperly granted Plaintiff-Respondent's request for leave to file a late Notice of Claim where no evidence of a legally cognizable excuse was provided. The Court also did not require that Plaintiff-Respondent submit any evidence that the Appellants obtained actual notice of the facts forming the basis of plaintiffs legal claim, or evidence establishing that the Defendants-Appellants are not prejudiced by the delay. Dated: New York, New York October 5, 2016 TO: Jennifer Mathew, Esq. Gregory J. Cannata & Associates, LLP Attorneys for Plaintiff 60 East 42nd Street, Suite 932 New York, New York 10165 CORNELL GRACE, P.C. , ' By: Porsha R. Johnson, Esq. Attorneys for Defendants City of New York, New York City School Construction Authority, Department of Education of the City of New York 111 Broadway, Suite 810 New York, New York 10006 (212) 233-1100
