In the Matter of Ryszard Grajko, Appellant,v.City of New York, et al., Respondents.BriefN.Y.November 14, 2017To be Argued by: KEITH D. GRACE Bronx County Clerk's Index No. 24793/16 Ntw lnrk ~uprtmt Qtnurt l\pp.ellat.e iiuisinn-1J1irst 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. REPLY BRIEF FOR RESPONDENTS-APPELLANTS Of Counsel: KEITH 0. GRACE PORSHA R. JOHNSON PRINTED ON RECYCLED PAPER@ 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 ARGUMENTS IN REPLY ........................................................................................ 3 POINT I The Prejudice to the Municipal Defendants is Evident and Undisputed ....................................................................................................... 3 POINT II It is Undisputed that the Respondent-Appellants Did Not Have Notice of the Claim within the Statutory Time Period and Petitioner-Respondent's Excuse is Invalid .................................................... 10 CONCLUSION ........................................................................................................ 12 1 TABLE OF AUTHORITIES Page(s) Cases: Caridi v. New York Convention Ctr., 47 A.D.3d 526, 849 N.Y.S.2d 261 (1st Dep't 2008) ....................................... 7 Chattergoon v. New York City Housing Auth., 161A.D.2d141 (1st Dep't 1990), ajf'd, 78 N.Y.2d 958 (1991) ................... 10 Ferrer v. City of New York, 172 A.D.2d 240, 567 N.Y.S.2d 734 (1st Dep't 1991) ..................................... 7 Gamoneda v. New York City Bd. of Ed., 259 A.D.2d 348, 687 N.Y.S.2d 46 (1st Dep't 1999) ....................................... 7 Gaudio v. City of New York, 235 A.D.2d 228, 651N.Y.S.2d530 (1st Dep't 1997) ............................. 11-12 Gerzel v. City of New York, 117 A.D.2d 549, 499 N.Y.S.2d 60 (1st Dep't 1986) ....................................... 7 Goodwin v. New York City Housing Authority, 42 A.D.3d 63, 834 N.Y.S.2d 181 (1st Dep't 2007) ......................................... 6 Harris v. City of N. Y, 297 A.D.2d 473, 747 N.Y.S.2d 4 (1st Dep't 2002) ................................... 8, 11 Kim v. City of New York, 256 A.D.2d 836, 81N.Y.S.2d247 (1st Dep't 1998) ..................................... 10 Matter of Embery v. City of New York, 250 A.D.2d 611, 671N.Y.S.2d984 (2d Dep't 1998) ................................... 11 N. Y Tel. Co. v. Travelers Cas. & Sur. Co. of Am., 280 A.D.2d 268, 719 N.Y.S.2d 648 (1st Dep't 2001) ................................... 11 Newcomb v. Middle Country Cent. Sch. Dist., 2016 NY Slip Op. 08581(December22, 2016) .................................. 2, 3, 4, 5 People ex rel. Wells & Newton Co. of N. Y v. Craig, 232N.Y.125, 133N.E.419(1921) .............................................................. 10 Thomas v. New York City Housing Authority, 132 A.D.3d 432, 17 N.Y.S.3d 130 (1st Dep't 2015) ....................................... 6 .. 11 PRELIMINARY STATEMENT In its simplest form, the question presented is whether the Court erred in granting the Petitioner-Respondent leave to serve a late notice of claim, when factors required to permit leave were not met. While the lower Court is granted discretion to evaluate these factors, this discretion is not unlimited, and when a review of the evidence on its face shows that the requirements as set forth by the law were not met, granting leave under those circumstances is improper. The opposition by the Petitioner- Respondent argues superficially that the requirements for leave were met, but pointed to no evidence in the record to substantiate that the factors warranting leave were met. Arguing tangentially that a party had notice of an incident, that a Petitioner was simply unaware of his medical condition, and that the municipal defendants are not prejudiced by late claims are wholly insufficient to warrant leave to file a late notice. As a matter oflaw, evidence must be submitted that shows the municipal entities had notice of a legal claim within the statutory time period. A litigant must establish by submission of medical documentation and affidavits that he was physically incapacitated and unable to comply with the mandates of General Municipal Law. A party must show that no prejudice would result from his failure to timely file by submission of evidence establishing lack of prejudice. No evidence was cited to in the record which establishes these factors. 1 The Petitioner- Respondent relied on the recent decision of Newcomb v. Middle Country Cent. Sch. Dist., which supports the proposition that mere allegations of "prejudice" without evidentiary support are insufficient to refute a showing of its opposite. 2016 NY Slip Op 08581, December 22, 2016. The decision was rendered after the lower Court ruling in the instant action. Nonetheless, the legal rationale behind the holding is not new - a party is required to submit evidence to substantiate his claims. This legal principal has held true for hundreds of years of New York Jurisprudence and does not substantially change the legal arguments or underpinnings in this action. Petitioner-Respondent however, fails to acknowledge is that the binding caselaw requires that he first be held to the same standard, and on that basis his petition for leave, fails. Here, it is undisputed that the Petitioner-Appellant did not document his legal claim in a timely manner-there are no records evidencing the Petitioner-Respondent advised anyone (within the statutory time period or otherwise) that he fell and was injured due to the construction of a scaffold. The Petitioner-Respondent admits that he was not immediately hospitalized, was not incapacitated and waited a year after his accident to pursue legal action. He submitted no evidence, records or affidavits from his doctors, medical facilities or providers establishing that he was incapacitated or incapable of pursing his claims. 2 It is undisputed that despite the Petitioner-Respondent's claim of substantial and severe injury, he never completed an accident report, returned to work after his accident, and permitted the scaffold to be dismantled and removed without any investigation, reporting or inspection taking place. It is beyond dispute his failures irreparably prejudices the Respondent Appellants. The exact instrumentality of alleged injury was rendered incapable of being preserved, inspected or examined due to his failure to timely report his claim. There can be no greater prejudice. This is not a tangential assertion but a real, undisputed one, which flowed directly from the Petitioner-Respondent's failure to timely file notice of his legal allegations. ARGUMENTS IN REPLY POINT I The Prejudice to the Municipal Defendants is Evident and Undisputed The Petitioner- Respondent cited the recent Court of Appeals case of Newcomb v. Middle Country Cent School District in support of its position that the Respondent-Appellants position controverts the Court's ruling. 2016 NY Slip Op 08581, December 22, 2016. Petitioner-Respondent misapprehends the applicable law. The import of the Newcomb decision was that it resolved a conflict between the Appellate Divisions regarding the legal standard with respect to a litigant's burden in establishing substantial prejudice. The Court confirmed that a petitioner bears the initial burden of establishing the lack of prejudice, and in order to refute 3 that burden, if met, requires specific evidence. Nothing in the holding controverts what is being alleged here. To the contrary, Respondents-Appellants submit that Petitioner-Respondent failed to meet his burden at the outset, and Respondent- Appellant submitted a particularized showing of the substantial prejudice it has incurred nonetheless. As was discussed, by the Petitioner-Respondent's own admission, no investigation regarding the Petitioner-Respondent's claim was conducted, no accident report was generated, no witness statements were taken and nothing was documented regarding his accident, because his accident was never reported to any of the Respondent-Appellants, or documented in a manner in which the Respondent- Appellants could have received timely notice. Despite claiming that the Petitioner- Respondent "reported" the incident to his employer, literally nothing was submitted substantiating this claim. No incident report was completed, a witness statement from his supervisor was not done, and no witness statements from the myriad of employees the Petitioner-Respondent now alleges were present was ever submitted as specific evidence in support of the notion that investigatory efforts and measures were done and/or preserved. The Petitioner-Respondent claims such evidence is preserved and exists, but remarkably failed to produce it. This is the exact type of speculative inference in an attorney affirmation the Newcomb decision denounced, 4 and the Petitioner-Respondent's attempt to utilize the decision as both a sword and a shield should not be permitted. Although the opposition alleges that that the Respondent-Appellant must put forth evidence that an investigation was attempted and not completed, the Petitioner- Respondent completely ignores the fact that the burden regarding a showing of "prejudice" only rests with the Respondent-Appellant after the initial showing of notice and reasonable excuse are met. Newcomb, 2016 NY Slip Op 08581, pg. 7/10. It is implausible to allege that an entity can be charged with conducting an investigation regarding a claim it had no notice of, especially where here, the first notice of the Petitioner-Respondent's claim was received concurrently with a Summons and Complaint. In the Newcomb decision, substantial investigative efforts were undertaken after the plaintiffs accident which documented the claim and the allegations that underpin the municipal liability. Newcomb, 2016 NY Slip Op 08581, pg. 3/10. 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 time period 1. 1 It must be noted - that the "notice" the Petitioner-Respondent continually relies upon in this case was a workers compensation claim form for a "strain" to his shoulders by lifting. Nothing in the 5 The First Department Thomas and Goodwin decisions cited by the Petitioner- Respondent are inapplicable to the instant suit. Thomas involved the Court's examination of the sufficiency of a timely notice of claim. Thomas v. New York City Housing Authority, 132 A.D.3d 432, 17 N.Y.S.3d 130 (1st Dep't 2015). In that case, the notice of claim was submitted, a 50H examination was held, and the plaintiff sought to amend the Notice to add additional allegations. Id. at 433. The Court was tasked to analyze the sufficiency of the proposed amended Notice, and determine whether a party was prejudiced by the Amendment. Id. Procedurally and factually, nothing in that case is applicable to the instant facts, especially whereas here, a timely notice was not filed and the municipal entities had no notice of the Petitioner-Respondent's claim until a year after his incident. The Goodwin decision is similarly inapplicable as it also involves a timely notice of claim and the Court's analysis of the sufficiency of a timely notice. Goodwin v. New York City Housing Authority, 42 A.D.3d 63, 834 N.Y.S. 2d 181 (1st Dep't 2007). None of the cases cited in support of the Petitioner- Respondent's arguments involve the construction and dismantling of a scaffold, and the prejudice that resulted from the failure to timely notify an entity regarding legal claims. Unlike here, in all report remotely referenced a scaffold or its construction as being involved, claimed or alleged as an instrument of injury (R34-35). 6 of the cases cited, an investigation of the claim was conducted immediately after the incident resulting in pertinent information being retained regarding the happenings of the accident. See, Caridi v. New York Convention Ctr., 47 A.D.3d 526, 849 N. Y. S .2d 261 (1st Dep 't 2008)(Trip and fall accident investigated by the State Police including a full report of the accident, interviewed witnesses and photographs); Gamoneda v. New York City Bd. of Ed., 259 A.D.2d 348, 687 N.Y.S.2d 46 (1st Dep't 1999)( an accident report and aided report was completed by a police officer immediately after a fall on ice); Gerzel v. City of New York, 117 A.D.2d 549, 499 N.Y.S.2d 60 (1st Dep't 1986)(trip and fall on steps claim permitted to go forward despite late notice due to timely accident report and photos). Unlike most construction site conditions, the scaffold, whether erected or dismantled could have been inspected within the statutory time period had adequate notice been provided that the inspection was required. Compare, Ferrer v. City of New York, 172 A.D.2d 240, 567 N.Y.S.2d 734 (1st Dep't 199l)(trip and fall on construction debris that could not have been reconstructed to reflect the conditions on the date of accident). Even in its dismantled state, the scaffold could have provided some information regarding a legal claim. The instrumentality could have been examined and could have resulted in very significant information in defense of a labor law 7 claim had notice of its involvement in Petitioner-Respondent's legal claim been known prior to receipt of a Summons and Complaint a year after the alleged injury. Although the Petitioner-Respondent argued at length that the "transitory nature" of the scaffold should not result in prejudice to the Respondent-Appellants, this Court has actually held the opposite. In cases where neither notice nor a reasonable excuse was provided to the defendants, the transitory nature of the defective condition weighs against the granting of an application to file a late notice of claim. Harris v. City of NY, 297 A.D.2d 473, 474, 747 N.Y.S.2d 4, 5 (1st Dep't 2002). Specifically the Court held, Contrary to plaintiffs' argument, the transitory nature of the defective condition asserted in the proposed notice of claim here ("a liquid substance, dirt and debris on the stairway") does not preclude the accrual of prejudice to defendants. Rather, it is a factor to be considered. Even where a municipal defendant has received some form of actual notice within the 90-day period, its claim of prejudice may be rebutted by the transitory nature of the condition, i.e., that timely notice of claim would make no difference. Where, however, there is neither notice nor a reasonable excuse, the transitory nature of the defective condition weighs against the granting of an application to file a late notice of claim. Id. at 474, internal citations omitted, emphasis supplied. Finally, the allegation that construction records are sufficient in lieu of a construction site accident investigation is illogical. The Respondent-Appellants were not the Petitioner-Respondent's direct employer, and have no records pertaining to 8 his specific work activities. Further, any Daily reports regarding the general work activity at a project contain absolutely no information which would assist in the defense of a legal labor law claim. This is especially true whereas here, the Petitioner alleges that the specific work activity supervised and directed by his employer, proximately caused his injury. Further, the Petitioner-Respondent's speculation as to what employees may be at a job site or what records that a non-municipal entity may or may not retain, has absolutely no relevance or relation to that which is retained and or generated by the Respondent-Appellants, all municipal entities. The facts in the record before the Court establish that the prejudice here is not tangential or immeasurable. It is specific and identified. The exact instrumentality of alleged injury was rendered incapable of being preserved, inspected or examined due to the Petitioner-Respondent's failure to notify the proper parties of his legal claim. The Petitioner-Respondent admitted that the project was not completed within the statutory time period, which would have permitted preservation of the scaffold by his employer had notice been timely made. The failure to timely report his legal claim is irreparable and the prejudice that inevitably flows from his failure to timely file is a nexus that has been established by specific competent evidence. 9 ' • POINT II It is Undisputed that the Respondent-Appellants Did Not Have Notice of the Claim within the Statutory Time Period and Petitioner-Respondent's Excuse is Invalid The caselaw is very clear that actual knowledge of a negligence claim is required within the statutory time period. "Actual knowledge" are essential facts forming the basis of a negligence claim. and not awareness of an accident. Kim v. City of New York, 256 A.D.2d 836, 81N.Y.S.2d247 (1st Dept. 1998); Chattergoon v. New York City Housing Auth., 161 A.D.2d 141 (1st Dept. 1990), aff'd, 78 NY2d 958 (1991). It is beyond argument that a workers compensation claim submitted weeks after his accident had no connection to the municipal defendants and could not provide notice to them. It is well known that the New York State Workers Compensation Board and the Respondent-Appellants are wholly separate and distinct legal entities, and any knowledge imparted to one entity cannot be imputed to the other. People ex rel. Wells & Newton Co. of N. Y v. Craig, 232 N.Y. 125, 133 N.E. 419 (1921). Further, the Petitioner-Respondent's allegation that notice was imparted to the Defendant - Appellants by virtue of its status as an additional insured under a workers compensation insurance policy is illogical and legally incorrect. Putting aside the obvious fact that a workers compensation claim is wholly separate from a civil liability claim, notice of a claim under a workers compensation insurance policy 10 does not impart knowledge of a claim to the additional insured, and does not provide requisite notice under a separately held general liability policy. To the contrary, an additional insured who seeks coverage has a duty to notify the insured should a legal claim be commenced against it. Not the opposite.NY. Tel. Co. v. Travelers Cas. & Sur. Co. of Am., 280 A.D.2d 268, 268, 719 N.Y.S.2d 648, 648 (1st Dep't 200l)(notice to the carrier by the additional insured was proper). The holder of a workers compensation policy is the employer, and the holder of a general liability policy is a separate party. Additional insured status does not confer anything but coverage in the event the additional insured becomes aware of a claim covered by the policy. It is factually and legally incorrect to assert that the holder of a workers compensation policy who is in knowledge of a claim against that policy, infers knowledge of a claim against the additional insured and its separate general liability policy. Finally, the Petitioner-Respondent admitted that his excuse regarding medical incapacity was invalid. See, Brief for Petitioner-Respondent pg. 8. This admission alone is dispositive on the issue of reasonable excuse and should preclude Petitioner- Respondent' s claim in its entirety. Harris v. City of N. Y., 297 A.D.2d 473, 473, 747 N.Y.S.2d 4, 5 (1st Dep't 2002), citing, Matter of Embery v. City of New York, 250 A.D.2d 611, 671 N.Y.S.2d 984 (2nd Dep't 1998), Gaudio v. City of New York, 235 11 A.D.2d 228, 651 N.Y.S.2d 530 (1st Dep't 1997). The lower court's Decision and Order should be reversed. CONCLUSION The Respondent-Appellants have established by admissible evidence that the Petitioner-Respondent failed to meet its burden for leave to file a late notice of claim. The Respondent-Appellants respectfully submit that it was error to award leave in this regard, and request reversal of the lower Court's decision and dismissal of Petitioner-Respondent's complaint in its entirety. Dated: Of Counsel: New York, New York February 9, 2017 Porsha R. Johnson Keith D. Grace 12 Respectfully submitted, y: Porsha . Johnson CORNELL GRACE, P .C. f!_) Attorneys for Defendant-Appellants 111 Broadway, Suite 810 New York, New York 10006 (212) 233-1100 I I I I I f I APPELATE DIVISION-FIRST DEPARTMENT PRINTING SPECIFICATIONS STATEMENT I hereby certify pursuant to 22 NY CRR § 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 2,677. Dated: New York, New York February 9, 2017 ~ ,~ (s{J,1{}!lJl/(} __ i{[~>l./ Porsha R. Johnson CORNELL GRACE, P.C. Attorneys for Defendants- Appellants 111 Broadway, Suite 810 New York, New York 10006 (212) 233-1100