In the Matter of Ryszard Grajko, Appellant,v.City of New York, et al., Respondents.BriefN.Y.November 14, 2017APL-2017-00120 Bronx County Clerk’s Index No. 24793/16 Court of Appeals STATE OF NEW YORK 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 AS AMICUS CURIAE OF THE NEW YORK STATE TRIAL LAWYERS ASSOCIATION MATTHEW A. FUNK President of the New York State Trial Lawyers Association By: SULLIVAN PAPAIN BLOCK MCGRATH & CANNAVO, P.C. 120 Broadway, 18th Floor New York, New York 10271 212-732-9000 Date Completed: September 11, 2017 To Be Submitted By: Brian J. Shoot i TABLE OF CONTENTS Page Table of Authorities ...............................................................................................................iii Interest of the Amicus ........................................................................................................... 1 Questions Presented .............................................................................................................. 5 The Critical Facts .................................................................................................................... 7 The Respondents’ So-Called Proof Of Substantial Prejudice: Consisting Of Nothing More Than An Attorney’s Speculations ..................... 9 The Respondents’ Further Contentions On Appeal, Including Their New-To-The-Case Claim Of Prejudice .............................................................. 12 This Court’s Ruling In Newcomb .............................................................................. 14 The Majority Ruling Below, Declining To Apply The Newcomb Standards ..................................................................................... 16 POINT I THE APPELLATE DIVISION MAJORITY COMMITTED LEGAL ERROR IN FAILING TO APPLY THE NEWCOMB STANDARDS AND IN EFFECTIVELY RE-WRITING THE PROVISIONS OF GML §50-E[5] ............................................................................ 19 A. The Appellate Division Majority Erred In Declining To Apply The Newcomb Standards Regarding The “Substantially Prejudiced” Inquiry Under GML § 50-e[5], And Further Erred In Effectively Re-Writing The Statute Itself................................................................................................. 20 B. As A Matter Of Law, Petitioner Here Presented “Some Evidence Or Plausible Argument That Supports A Finding Of No Substantial Prejudice.” .................................................... 23 ii C. As A Matter Of Law, Respondents Failed To Make “A Particularized Evidentiary Showing” That They Would Be “Substantially Prejudiced If The Late Notice [Were] Allowed.” ........................................................................................ 27 Conclusion ............................................................................................................................. 30 Certificate of Compliance .................................................................................................... 31 iii TABLE OF AUTHORITIES Page(s) Cases Callahan v City of New York, 75 NY2d 899 [1990] ....................................................................................................... 16 Camarella v E. Irondequoit Cent. School Bd., 34 NY2d 139 [1974] ................................................................................................. 22, 23 Cruz v City of New York, 149 AD3d 835 [2d Dept 2017] ..................................................................................... 27 Edwards v City of New York, 2 AD3d 110 [1st Dept 2003] ......................................................................................... 26 Ferrer v City of New York, 172 AD2d 240 [1st Dept 1991] ..................................................................................... 25 Grajko v City of New York, 150 AD3d 595 [1st Dept 2017] ................................................................................passim Kranick v Niskayuna Cent. School Dist., 151 AD3d 1262 [3d Dept 2017] ............................................................................. 16, 24 McGillick v City of New York, 13 AD3d 195 [1st Dept 2004] ....................................................................................... 16 Murray v City of New York, 30 NY2d 113 [1972] [Breitel, J., concurring] ............................................................... 22 Nayyar v Bd. of Educ. of City of New York, 169 AD2d 628 [1st Dept 1991] ..................................................................................... 16 Newcomb v Middle Country Cent. School Dist., 28 NY3d 455 [2016] ..................................................................................................passim Porcaro v City of New York, 20 AD3d 357 [1st Dept 2005] ....................................................................................... 16 Scantlebury v New York City Health and Hosps. Corp., 4 NY3d 606 [2005] ......................................................................................................... 22 iv Swensen v City of New York, 126 AD2d 499 [1st Dept 1987] ..................................................................................... 16 Wally G. ex rel. Yoselin T. v New York City Health and Hosps. Corp., 27 NY3d 672 [2016] ....................................................................................................... 20 Williams ex rel. Fowler v Nassau County Med. Ctr., 6 NY3d 531 [2006] ......................................................................................................... 20 Statutes General Municipal Law § 50-e .................................................................................. 3, 22, 23 General Municipal Law §50-e(5) ...................................................................................passim Other Authorities Bill Jacket of L. 1976, ch. 745 ............................................................................................. 22 COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------------X 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. ------------------------------------------------------------------------X BRIEF AS AMICUS CURIAE OF THE NEW YORK STATE TRIAL LAWYERS ASSOCIATION Interest of the Amicus The New York State Trial Lawyers Association (“NYSTLA”) is an organization of attorneys, most of whom represent plaintiffs in personal injury litigation. This Court has in the past allowed NYSTLA to submit amicus briefs on issues that were important to NYSTLA’s members. Indeed, it was permitted to submit an amicus brief in Newcomb v Middle Country Cent. School Dist., 28 NY3d 455 [2016], the case which the Appellate Division majority here declined to follow on the ground that “a timely notice of claim had [there] already been filed against the other municipal defendants 2 and the only question was whether to permit the filing of a late notice of claim against the school district.” Grajko v City of New York, 150 AD3d 595, 1 [1st Dept 2017]. Newcomb was, of course, the case in which this Court resolved several interrelated issues concerning the determination under General Municipal Law § 50- e[5] of whether, per the language of the statute, “the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.” As this Court there noted, there was case law in each of the four Departments of the Appellate Division to the effect that it was the petitioner’s burden to negate “substantial prejudice,” and case law in all four Departments for the opposite proposition. Newcomb, 28 NY3d at 466. The Newcomb Court decided that “the burden initially rests on the petitioner to show that the late notice will not substantially prejudice the public corporation” (28 NY3d at 466). But it also ruled (1) the petitioner’s showing “need not be extensive” and the petitioner need only “present some evidence or plausible argument that supports a finding of no substantial prejudice” (id. at 466), (2) once that initial burden is met, “the public corporation must respond with a particularized evidentiary showing that the corporation will be substantially prejudiced if the late notice is allowed” (id. at 467) and (3) because the public corporation “is in the best position to know and demonstrate whether it has been substantially prejudiced by the late notice” (id. at 467-478), “speculation and inference do not satisfy the requirement of a particularized showing of substantial prejudice …” (id. at 467). 3 In the wake of this Court’s ruling in Newcomb, one might have anticipated, and this Court might have anticipated, that there would be cases in which courts applying the Newcomb rules concluded that the public corporation would be “substantially prejudiced” by the petitioner’s delay, other cases in which courts applying the Newcomb rules reached the opposite conclusion, and still other cases in which the finding that the public corporation was or was not “substantially prejudiced” was outweighed by the other considerations that are pertinent under the statute. Yet, what one would not have anticipated, and what we suspect the Court neither intended or participated, is that the courts would decline to follow the Newcomb rules or, as here, conclude that Newcomb applied only to the small subset of GML § 50-e proceedings in which “a timely notice of claim had already been filed against … other municipal defendants and the only question was whether to permit the filing of a late notice of claim against the [subject defendant].” Grajko at 1 [1st Dept 2017]. Here, the Appellate Division majority did not apply the Newcomb rules and thereby conclude that leave to file was not warranted. It instead ruled that the petitioner’s reliance on the ruling was “misplaced” and then proceeded to apply rules of its own. In doing so, it declined to frame the initial inquiry as whether the petitioner had presented “some evidence or plausible argument that supports a finding of no substantial prejudice,” declined to next inquire whether the public corporation then responded “with a particularized evidentiary showing that the 4 corporation will be substantially prejudiced if the late notice is allowed,” and ultimately determined that the same showing of prejudice deemed legally inadequate in Newcomb, an attorney’s speculations, here sufficed to establish prejudice. More than that, the Appellate Division majority equated “prejudice” with lack of “actual knowledge,” the very thesis this Court expressly rejected in Newcomb. The majority did not indicate any respect in which the public corporation’s ability to mount a defense had worsened during the approximately nine-month period from the time that the petitioner could have filed as of right (within 90 days of the subject occurrence) to the time of the application (about a year after the subject occurrence). The supposedly “clear and explicit” prejudice that the Appellate Division majority referenced would have equally applied had petitioner timely filed 80 or 90 days after he sustained his injuries. Worst of all, the Appellate Division majority re-wrote the statute itself. The statute expressly directs the Court to consider “whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits [emphasis added].” The Appellate Division majority evidently felt that the balance should be even further skewed in the public corporations’ favor. It noted the prejudice standard four times … each time omitting the word “substantially.” NYSTLA’s interest in the subject appeal is thus the same interest it had in Newcomb itself. Just as the standards governing GML § 50-e[5] applications are important to NYSTLA and to the tort victims whom NYSTLA’s members represent, 5 so too is the question of whether the standards detailed in Newcomb generally apply to all such applications or only to the small subset of applications in which other public corporations were timely served with notices of claim. Questions Presented 1. Do the rules set forth in Newcomb (28 NY3d 455) with respect to the determination of whether the public corporation would be “substantially prejudiced” by late filing of a notice of claim generally apply to all applications made under General Municipal Law § 50-e[5] or, alternatively, do they apply only where “a timely notice of claim ha[s] already been filed against … other municipal defendants and the only question [is] whether to permit the filing of a late notice of claim against the [corporation seeking to avoid suit]” (Grajko at 1)? NYSTLA submits that the rules should apply to all such proceedings, but the Appellate Division majority ruled otherwise. 2. Where it was uncontroverted that the subject accident was witnessed (R.32),1 uncontroverted that the subject scaffolding was dismantled at the end of each work day and had therefore been altered prior to the 90-day deadline for filing of the notice of claim (R.31), uncontroverted that the conditions of which petitioner complained were not momentary or fleeting, and uncontroverted that the subject events occurred at a major construction site where one would expect daily progress reports and daily photographs in the normal course of 1 All such references correspond to pages in the Record on Appeal. 6 events, was there “some evidence or plausible argument that support[ed] a finding of no substantial prejudice” (Newcomb, 28 NY3d at 466). The Appellate Division majority did not address that particular question. Nor did it ever use the terms “substantial prejudice” or “substantially prejudiced.” However, it did conclude petitioner “failed to establish a lack of prejudice to respondents” (Grajko at 1). 3. Where respondents failed to present any evidence that they had not investigated the accident, did not have contemporaneous photographs of the subject scaffold, or could not locate witnesses, where respondents’ entire opposition consisted of nothing more than an attorney’s affirmation unaccompanied by proof, and where the affirmation did not even allege any respect in which the respondents’ ability to defend was worse than would have been the case had petitioner filed notice of claim 70 or 80 days after the subject occurrence, did respondents present “a particularized evidentiary showing that [they would] be substantially prejudiced if the late notice [were] allowed” (Newcomb, 28 NY3d at 467). The Appellate Division majority did not say whether respondents had made a “particularized evidentiary showing” of “substantial prejudice.” It also dropped the modifier “substantially,” which comes from the statute itself. However, it concluded that “the prejudice” in being compelled to defend on the merits “was clear and explicit” (Grajko at 1). 7 The Critical Facts The facts of the case were summarized in the dissenting opinion of the Appellate Division. The pertinent dates are as follows: the subject incident occurred July 15, 2015 during the course of the construction of a brick addition to IS 339, a public school in the Bronx (R.30). Petitioner Ryszard Grajko swore, through an interpreter, that he informed his employer of his accident “immediately” (R.31) and that he filed a workers’ compensation claim “on or about July 29, 2015” (R.31). He had the surgery on his shoulder on November 11, 2015 (R.31) and the surgery on his hip on July 8, 2016 (R.31). It was only then, according to the petitioner’s affidavit, that he realized the accident had “effectively ended my career in construction” (R.31). Petitioner did not say whether the employer conveyed the information concerning his injuries to the respondents (R.30-33), but nor would he have had any knowledge, as a bricklayer at a construction site, what, if anything, was reported to respondents. Petitioner adduced copies of the documents already in his possession: his workers’ compensation injury report (R.34-36) and an Insurance Certificate naming the New York City Construction Authority as an additional insured (R.37). The proceeding for permission to file late notice was commenced on or about July 15, 2016 (R.21-29), a week after the surgery on petitioner’s hip. Based upon her own personal knowledge, petitioner’s counsel said that petitioner first consulted with her office that day, July 15, 2016 (R.23-24). Counsel presumably commenced the 8 proceeding immediately, and without attempting to acquire any documentation that was not already in the petitioner’s possession, out of concern that respondents would claim to have been additionally prejudiced by each passing day. Respondents opposed the application by affirmation dated August 31, 2016 (R.62-73). NYSTLA would particularly note the following facts: (1) petitioner said that he fell and sustained injury to his hip because “a standard scaffold could not be constructed” and the scaffold in issue had “a triangular shape” and “uneven floor” (R.30-31); (2) he said that he injured his shoulder not as a result of any accident per se, but because he was required “to lift 60 to 70 pound buckets of brick and mortar” first from the ground to the lower level of the scaffold (a distance of about four feet) and then to “the second level of the scaffold” (an additional six feet) (R.31); (3) he said, under oath, that the scaffold “was dismantled at the end of work each day” but that he “believe[d] there are photographs of his makeshift scaffold which would be available for inspection by the parties” (R.31); (4) he also said there were “several witnesses to the condition of the scaffold and my injury” who were “available to testify in this lawsuit” (R.32); 9 (5) the petitioner’s claim that he reported the accident to his employer “immediately” was corroborated by the July 29, 2015 workers’ compensation report, which stated that “Employer Had Knowledge of the Injury” on July 15, 2015, which was the date of the occurrence (R.35). The Respondents’ So-Called Proof Of Substantial Prejudice: Consisting Of Nothing More Than An Attorney’s Speculations Although it would have been a simple matter for respondents to produce some employee or contractor to say that they were not contemporaneously told of the petitioner’s accident and/or that the scaffolding was not dismantled at the end of the work day and/or that some witness had become unavailable or had suffered some loss of memory, respondents instead responded with an attorney’s affirmation … and nothing else (R.62-73). In opposing the application, respondents asserted the following legal allegations: (1) the petitioner was “bound to the 90-day frame work as set forth by the legislature” in the “absence of compelling circumstances,” a proposition which was supported by citation to a 1979 Civil Court decision (R.65); (2) “[i]n order to obtain leave to serve a late Notice of Claim under GML §50-e(5), the party seeking leave must proffer a satisfactory excuse for not serving a timely Notice of Claim [emphasis added],” a claim 10 which was supported by citation to an unreported lower court case and a 36-year-old Appellate Division ruling (R.66), (3) “[p]etitioner’s failure to appreciate the severity of his condition” was “simply not a valid excuse recognized by New York Law” (R.66),2 and, most importantly, (4) “[d]elay in providing proper notice indisputably prejudices the Respondents and it is the claimant’s burden to dispel that presumption” (R.72). As for the facts bearing upon the “actual knowledge” and “substantial prejudice” factors, respondents did not produce any employee or person with knowledge to say that respondents were not contemporaneously informed of the accident … but instead had their counsel intone that “the Respondent School Construction Authority 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” (R.64). Similarly, respondents did not produce any person with knowledge to say that the accident was not contemporaneously investigated … but instead had their counsel observe that the one report in petitioner’s possession, his workers’ compensation Report of Injury, was legally inadequate “because the report does not even remotely reflect how or what caused the Petitioner’s injury” (R.69). 2 Contrast the case law collected in footnote 4 of this brief. 11 But the most interesting part of the opposition was respondents’ explanation as to how they were “Irreparably Prejudiced by the Petitioner’s Failure to Timely File a Notice of Claim” (R.70). Faced with the challenge of explaining what more they could have done to investigate the claim in a case in which the scaffolding was dismantled at the end of each day, respondents proceeded to ignore that particular detail and to instead suggest, without actually stating as fact, that the scaffolding was dismantled at some unidentified time after the expiration of the 90-day notice of claim period and that it therefore could have been examined if plaintiff had timely filed his notice of claim (R.71): … The scaffold which plaintiff was working was removed and/or altered or changed some time after plaintiff’s claimed incident. Had the Respondents been properly advised of plaintiff’s incident, perhaps they would have been afforded the opportunity to inspect the scaffold at issue. Or, they could have requested that the scaffold not be removed, or inquired and investigated its installation and use … Emphasis added. As for the petitioner’s claim that the scaffolding would appear in the photographs that were taken routinely during the course of construction, respondents’ counsel responded that there was a “lack of photographs” and that such deficiency left “Respondents without any knowledge regarding how the scaffold and or scene appeared at the time of petitioner’s injury” (R.72). Respondents similarly pronounced that whatever “construction records pertaining to the work site may be available” 12 (R.71), “said records will not provide any insight into the happenings of plaintiff’s accident” (R.71), the “proof” of which was that counsel said so. The Respondents’ Further Contentions On Appeal, Including Their New-To-The-Case Claim Of Prejudice This Court’s ruling in Newcomb was rendered after Supreme Court granted leave herein but before the filing of the parties’ Appellate Division briefs. However, it did not in any way change respondents’ position as to the applicable law because, according to respondents, the ruling was not applicable to this case. Respondents urged that Newcomb “does not substantially change the legal arguments or underpinnings in this action.” Grajko Resp. App. Div. Reply Br. at 2. Newcomb was, respondents said, a special case because “substantial investigative efforts were undertaken after the plaintiff’s accident which documented the claim and the allegations that underpin the municipal liability” and “[t]he 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.” Id. at 5. Meanwhile, after having previously insinuated without any factual support that the scaffolding was dismantled at some unidentified time after the passage of the 90- day period for filing as of right (R.71), respondents now went a step further in their 13 appellate briefs. They now explicitly asserted that the scaffolding was dismantled because of petitioner’s delay in filing notice of claim: 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. Grajko, Resp. App. Div. Reply Br. at 9, emphasis added. Respondents also came up with a new and logically inconsistent claim as to how they had been “irreparably prejudiced.” According to respondents, they could have obtained “very significant information” from examining the scaffold “[e]ven in its dismantled state” but had now had been denied that opportunity by virtue of petitioner’s delay in filing. Id. at 7. The “proof” of both factual assertions — that examination of the dismantled scaffold would have provided “very significant information” and that such examination was now impossible — was the same as every other factual claim of any importance. Their counsel said so. The gist was as follows: 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 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. Grajko Resp. App. Div. Reply Br. at 7-8. 14 This Court’s Ruling In Newcomb Newcomb resolved a number of related issues on which each of the four Departments had internally disagreed. The Newcomb Court held, inter alia: (1) while GML § 50-e[5] requires that other factors be considered as well, “[o]ne factor the court must consider is ‘whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits [emphasis added]’” (Newcomb, 28 NY3d at 461, quoting GML § 50-e[5]); (2) the petitioner bears the initial burden of negating substantial prejudice but “[s]uch a showing need not be extensive” and the “petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice” (id. at 466); (3) once that showing is made, “the public corporation must respond with a particularized evidentiary showing that the corporation will be substantially prejudiced if the late notice is allowed” (id. at 467) inasmuch as the public corporation “is in the best position to provide evidence as to whether the late notice has substantially prejudiced its ability to defend the claim on the merits” (id. at 468); (4) “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” (id. at 460); and, 15 (5) whether the public corporation would be “substantially prejudiced” by the late filing is a “separate inquiry” from whether it had actual knowledge of the essential facts constituting the claim (id. at 467). Although respondents (and thereafter the Appellate Division majority) deemed it very significant that the petitioner in Newcomb had timely filed notices of claim against other public corporations, the Newcomb Court mentioned that fact only once, in its first paragraph concerning the particulars of the case (28 NY3d at 461). The Court did not mention it at all as relating to prejudice and at no point suggested that the rules stated therein apply only where some different public corporation was timely served with a notice of claim. Although respondents here argued in their Appellate Division reply brief that the late notice in Newcomb “pertained only to an additional claim that sought to be added regarding the existence of a sign” (Grajko, Resp. Reply Br. at 5), the so-called “additional claim” concerning the sign was the only claim petitioner asserted against that defendant. Nor had the claim concerning the sign been previously asserted against any defendant. The plaintiff first learned of the sign’s very existence only after the 90-day deadline had expired. Newcomb, 28 NY3d at 461. 16 The Majority Ruling Below, Declining To Apply The Newcomb Standards Impliedly disagreeing with all of the precedent to the contrary,3 the Appellate Division majority ruled, “Petitioner’s alleged failure to realize the severity of his injuries within 90 days after his accident did not constitute a reasonable excuse for his delay in serving a notice of claim, especially since petitioner filed a workers’ compensation claim just weeks after the accident.” Grajko, 150 AD3d at 1. As for the resultant impact of that determination, it is impossible to say whether, (a) the Appellate Division majority felt it was a good thing for public corporations to spend their time and money investigating accidents that apparently did not cause any serious injuries even though the vast majority of such accidents would not result in suits or settlements, 3 Porcaro v City of New York, 20 AD3d 357, 358 [1st Dept 2005] (“we find that petitioner filed his notice of claim within the statutory discretionary period as that period did not begin to run until petitioner’s diagnosis. As we have previously held, petitioner should not be penalized for waiting to see if his symptoms, which resembled a cold or the flu, would resolve themselves. To hold otherwise would encourage preemptive filing of notices of claim by claimants who have no good-faith basis for believing that they were actually injured”); McGillick v City of New York, 13 AD3d 195, 195 [1st Dept 2004] (similar); Nayyar v Bd. of Educ. of City of New York, 169 AD2d 628, 629 [1st Dept 1991] (“we note that while claimant’s claim of ignorance of the 90 day requirement is not a valid excuse for the delay in serving notice, claimant also alleged that she did not become aware of the seriousness of her injuries until after the expiration of the ninety day period when she learned that the diagnosis consisted of two herniated discs and that conservative medical treatment would not alleviate the condition”); Swensen v City of New York, 126 AD2d 499, 501 [1st Dept 1987] (“In our view, petitioner’s explanation that he did not seek legal advice until after the statutory filing period had expired, when he was informed that his prognosis for recovery had worsened, is reasonable”); see also Callahan v City of New York, 75 NY2d 899, 900–901 [1990] (where “[petitioner’s] physician diagnosed a sprained ankle” but “[a]fter expiration of the 90-day period to file a notice of claim … Callahan allegedly learned his injuries were more serious, perhaps permanent”); Kranick v Niskayuna Cent. School Dist., 151 AD3d 1262 [3d Dept 2017]. 17 (b) the majority felt that its ruling would not result in any additional investigations since everyone knows that notices of claim never trigger investigations and serve only as a pretext for dismissing suits that may have merit, or, (c) the majority never considered the matter. However, the key part of the majority decision for present purposes is the ruling regarding the substantial prejudice factor. The majority never asked or analyzed whether respondents were “substantially prejudiced” by the petitioner’s delay. The majority instead dropped the modifier from the analysis, with the consequence that the words “substantial” and “substantially” do not appear in the opinion. Nor did the Appellate Division majority deem the Newcomb standards applicable to the inquiry. The majority never considered whether there was “some evidence or plausible argument of no substantial evidence” or whether there was a “particularized evidentiary showing that [respondents] will be substantially prejudiced if late notice is allowed.” The Appellate Division majority instead concluded that petitioner’s reliance upon Newcomb was “misplaced” by virtue of a factual detail that was all but irrelevant to the Newcomb analysis: that “a timely notice of claim had already been filed against the other municipal defendants.” Grajko at 1. Thus, in this case in which respondents proclaimed that notice to any of them would not constitute notice to the other two since “Respondents are separate and 18 distinct legal entities, and are wholly independent with respect to management and tort liability” (R.69) — which, not incidentally, was incorrect in the present context since the statute itself says that the actual knowledge issue turns on “whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim” (GML § 50-e[5]) — the Appellate Division majority distinguished Newcomb on the ground that unrelated entities that were not represented by the same counsel and had not been sued for the same alleged failings had had timely knowledge of the claims against them. The majority ruling concerning the prejudice factor was, in its entirety, as follows: Petitioner also failed to establish a lack of prejudice to respondents. Petitioner’s reliance on Newcomb (Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455 [2016]) is misplaced. In Newcomb, a timely notice of claim had already been filed against the other municipal defendants and the only question was whether to permit the filing of a late notice of claim against the school district (id. at 461, 462). Notably, the petitioner in Newcomb pointed to several specific facts that negated any claim of prejudice on the part of the school district besides the passage of time, and thus his burden to show lack of prejudice in that case was easily met, shifting the burden to the school district (id. at 466–467). Our case has a completely different posture. As stated, there is no evidence respondents were aware of an accident even occurring. Petitioner here, unlike the petitioner in Newcomb, does no more than refer to numerous construction records that purportedly could be examined, yet provides no names of actual witnesses nor any reference to specific information in those records. Even assuming petitioner here met his initial burden, the prejudice to respondents, shown herein, was clear an explicit. 19 POINT I THE APPELLATE DIVISION MAJORITY COMMITTED LEGAL ERROR IN FAILING TO APPLY THE NEWCOMB STANDARDS AND IN EFFECTIVELY RE-WRITING THE PROVISIONS OF GML §50-e[5]. For the reasons detailed below, NYSTLA respectfully submits: (1) the Appellate Division majority erred in declining to apply the Newcomb standards regarding the “substantially prejudiced” inquiry dictated by GML § 50-e[5], and, more than that, erred in effectively re- writing the statute so as to replace “substantially prejudiced” with “prejudiced”; (2) the Appellate Division majority erred in failing to find that petitioner had presented “some evidence or plausible argument that supports a finding of no substantial prejudice” (Newcomb, 28 NY3d at 466); and, (3) in this case in which the sum total of respondents’ “evidence” was an attorney’s affirmation, the Appellate Division majority erred in failing to find that respondents had not made a “particularized evidentiary showing” that they would be “substantially prejudiced” by petitioner’s delay in filing notice of claim. In advancing those contentions, NYSTLA does not address whether, on the whole, leave to file late notice should have been granted. NYSTLA contends only that there are now clear and controlling rules that govern the “substantially 20 prejudiced” standard. The Appellate Division majority here disregarded those rules and the statutory standard itself. A. The Appellate Division Majority Erred In Declining To Apply The Newcomb Standards Regarding The “Substantially Prejudiced” Inquiry Under GML § 50-e[5], And Further Erred In Effectively Re-Writing The Statute Itself. Admittedly, the decision whether the balance of all pertinent factors weighs in favor of granting leave or in favor of denying leave is discretionary. Wally G. ex rel. Yoselin T. v New York City Health and Hosps. Corp., 27 NY3d 672, 675 [2016]; Williams ex rel. Fowler v Nassau County Med. Ctr., 6 NY3d 531, 539 [2006]. Yet, the Appellate Division did not have discretion to simply disregard the Newcomb standards governing the “substantially prejudiced” and to instead apply standards of its own, which is precisely what occurred in this case. The Appellate Division majority did not here consider whether petitioner had failed to present “some evidence or plausible argument that supports a finding of no substantial prejudice.” Newcomb, 28 NY3d at 466. It did not consider whether respondents came forth “with a particularized evidentiary showing that [they would] be substantially prejudiced if the late notice [were] allowed.” Id. at 467. Rather than applying those standards to the question of whether the respondents were here substantially prejudiced by the delay, the majority ruled that petitioner’s reliance on Newcomb was “misplaced” and then proceeded to apply standards which markedly differed from those set forth in Newcomb. 21 Worse still, the majority trivialized Newcomb by deeming the standards therein inapplicable by virtue of a circumstance that had little bearing on the outcome of Newcomb and no bearing whatsoever on the applicability of the Newcomb standards: that in Newcomb “a timely notice of claim had already been filed against the other municipal defendants and the only question was whether to permit the filing of a late notice of claim against the school district” (Grajko at 1). Even ignoring that there was there neither any proof nor even any claim that the other public corporations in Newcomb had actually investigated the subject accident,4 and even if one disregards that the other public corporations therein were sued for different alleged failings, the fact that the petitioner in Newcomb had timely filed notices of claim against other public corporations could at very most affect whether the respondent was substantially prejudiced. The distinction could not possibly render the Newcomb standards inapplicable. Indeed, if the Newcomb standards apply only where “a timely notice of claim had already been filed against … other municipal defendants and the only question was whether to permit the filing of a late notice of claim against [an additional municipal defendant]” (Grajko at 1), they will hardly ever apply and this Court will have invested a great deal of care in fashioning balanced standards towards no particular end. 4 The Newcomb Court noted there was a police investigation regarding the hit-and-run driver but did not mention any other investigation. Nor did respondents herein explain how the public corporations that had timely been served with notice of claim in Newcomb could have conducted any meaningful investigation even while the on-going police investigation hindered petitioner’s counsel’s investigation of the occurrence. 22 Worst of all, the majority not only declined to follow the Newcomb standards but also re-wrote the statute itself. The statutory inquiry is “… whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits [emphasis added].” GML § 50-e[5]. That, however, is not the standard that was here applied by the Appellate Division majority. It dropped the modifier “substantially” and instead addressed whether respondents were “prejudiced” at all. Nor could one credibly suggest that the majority inadvertently dropped the modifier “substantially.” The word “prejudice” appears four different times in the majority’s opinion — and the modifier “substantially” was omitted all four times. It warrants mention that the statute was amended to its present form, at this Court’s prompting, precisely to avoid routine dismissal of potentially meritorious claims. Prior to 1976, the statute effectively operated as a “very short Statute of Limitations.” Murray v City of New York, 30 NY2d 113, 121 [1972] [Breitel, J., concurring]. This Court called for “legislative reconsideration of the harsher aspects of section 50-e” “in order that a more equitable balance may be achieved between a public corporation’s reasonable need for prompt notification of claims against it and an injured party’s interest in just compensation.” Camarella v E. Irondequoit Cent. School Bd., 34 NY2d 139, 141–143 [1974]. The legislature responded to that call by effecting the 1976 amendment of the statute. Scantlebury v New York City Health and Hosps. Corp., 4 NY3d 606, 612 [2005] (quoting from the Bill Jacket of L. 1976, ch. 745 that “[t]he 23 purpose of this bill is to follow the suggestion of the Court of Appeals in (Camarella): to reconsider the harsher aspects of section 50-e”]). This Court’s ruling in Newcomb, which was expressly made with the goal of striking “a fair balance” between the competing interests of the public corporations and those who may have meritorious claims against the public corporations (Newcomb, 28 NY3d at 467), was entirely consistent with that legislative intent. It may be that some, including respondents, would have struck a difference balance. Regardless, the statute and this Court’s standards concerning the statute’s application should be followed in all proceedings brought under the statute. Here they were not. B. As A Matter Of Law, Petitioner Here Presented “Some Evidence Or Plausible Argument That Supports A Finding Of No Substantial Prejudice.” The fact that the Appellate Division majority failed to apply the proper legal standard should of itself dictate reversal. But the question would then remain whether the Court should find as a matter of law that (a) the petitioner presented “some evidence or plausible argument” negating substantial prejudice and (b) respondents failed to rebut that showing with a “particularized evidentiary showing” that they were “substantially prejudiced” by petitioner’s delay in filing notice of claim. Here, both factors can and should be determined as a matter of law. 24 At the outset, while lack of actual knowledge may be pertinent in assessment of the substantial prejudice factor, each requires a separate inquiry and the corporation’s lack of contemporaneous knowledge of the essential facts — an allegation that was here based wholly on the respondents’ counsel’s representations — cannot establish that respondents would be substantially prejudiced by the petitioner’s delay in serving notices of claim. Newcomb, 28 NY3d at 467 (“whether the public corporation is substantially prejudice remains a separate inquiry under the statute … there may be scenarios where, despite a finding that the public corporation lacked actual knowledge during the statutory period or a reasonable time thereafter, the public corporation nonetheless is not substantially prejudiced by the late notice”); Kranick, 151 AD3d 1262 (“[a]lthough our review of the record supports Supreme Court's finding that respondent did not have actual knowledge of the essential facts constituting the claim until the filing of the notice of claim, its conclusion that petitioner failed to meet his burden to show a lack of substantial prejudice is not supported by the record”). Just as importantly, while respondents below argued and the Appellate Division majority apparently agreed that appropriate inquiry was whether respondents were “prejudiced” by the petitioner’s failure to file notice of claim on the same day as the subject accident,5 respondents were not entitled to insist that the notice of claim be 5 Respondent’s primary claim of prejudice was that petitioner’s delay had supposedly prevented them from examining the scaffolding before it was altered (R.71), this notwithstanding that the scaffolding was dismantled at the end of the same work day that petitioner was injured (R.31). 25 filed the same day or even the same week as the subject accident. Petitioner had, as a matter of right, 90 days to file. Accordingly, the pertinent issue is whether respondents’ ability to investigate and defend the case on its merits was substantially impaired by virtue of the passage of the additional nine months after expiration of the 90-day period in which petitioner could file as a right. Here, there was not merely “a plausible argument” supporting a finding of no substantial prejudice. There were multiple plausible arguments to that effect, each premised on unrebutted proof. First, it was uncontroverted that the scaffolding was dismantled at the end of each work day (R.31), meaning that respondent’s ability to examine the unaltered scaffolding was no worse a year after the accident than a day after the accident (or 90 days after the accident). Second, the case did not involve an unwitnessed trip-and-fall on a public sidewalk or even a vehicular collision as to which only a few people could provide meaningful testimony. The case arose from a major construction project on which petitioner was merely one of many workers and where there would normally be daily progress reports and photographs. E.g., Ferrer v City of New York, 172 AD2d 240, 240 [1st Dept 1991] (where the accident occurred “at a massive construction site” “the City had representatives at the job site whom [petitioner] believed had notice of the accident and were familiar with the surrounding conditions,” and it was “highly unlikely that the conditions existing at the time of the accident would have existed 26 until the end of the 90–day period in which a claim could have been timely filed”); Edwards v City of New York, 2 AD3d 110, 111 [1st Dept 2003] (where the case concerned post-9/11 conditions at the World Trade Center site and it was “not credible that the Department of Sanitation lacks records of its employees’ work assignments and its provision of protective equipment”). Third, the condition that purportedly caused petitioner to trip, that the “makeshift scaffolding” was not level, was not a momentary condition that would not have been observed by a supervisor unless the supervisor happened by at some particular time of day. The scaffolding was purportedly constructed that way and remained that way throughout the entire day because a “standard scaffold” “could not be constructed” (R.30). Similarly, the event that allegedly caused the injury to plaintiff’s shoulder was not a quickly occurring event that would have been seen only by those that happened to be looking in his direction at a discrete moment in time. He was purportedly injured by reason of repeatedly having to lift 60 to 70 pound buckets of brick and mortar at a respondent-owned construction site where material hoists were apparently not a burning priority. Last, while petitioner would have had no way of knowing what, if anything, his employer thereafter did with the information, he swore that he reported the accident to his employer “immediately” (R.31) and that claim was corroborated by a workers’ 27 compensation form stating that “Employer Had Knowledge of the Injury” on “07/15/15” (R.35). Such, by any reasonable measure, was “some evidence or plausible argument that supports a finding of no substantial prejudice.” Newcomb, 28 NY3d at 466-467. C. As A Matter Of Law, Respondents Failed To Make “A Particularized Evidentiary Showing” That They Would Be “Substantially Prejudiced If The Late Notice [Were] Allowed.” The point here is pretty straightforward. First, given that respondents adduced no evidence at all — their so-called evidence was an attorney’s affirmation — it necessarily follows that they failed to make a “particularized evidentiary showing” that they would be substantially prejudiced by petitioner’s delay. Cruz v City of New York, 149 AD3d 835, 836–837 [2d Dept 2017] (“[i]n opposition to the petition, the City provided only its attorney’s affirmation, which was insufficient to overcome the petitioner’s showing of a lack of substantial prejudice”). For example, the so-called proof that the employer did not contemporaneously apprise respondents of the accident and that respondents did not investigate the accident — matters of which petitioner would have no personal knowledge — was that respondents’ counsel said so. Even ignoring that respondents made a “particularized evidentiary showing” of absolutely nothing, their lower court opposition papers did not even allege any respect in which their ability to defend the case had worsened between the time that 28 petitioner could have filed notice of claim as of right and the time he sought leave to file. Rather, respondents’ arguments regarding prejudice all turned on the claim that their ability to defend was impaired by petitioner’s failure to file notice of claim immediately after he was injured, presumably by retaining counsel on his way home from the work site. It was not until the appeal itself — more specifically in their Appellate Division reply brief — that respondents decided that examination of the scaffolding “[e]ven in its dismantled state” could have provided “very significant information in defense of a labor law claim” and that such examination could have occurred “within the statutory time period had adequate notice been provided that the inspection was required.” Resp. Reply Br. at 7-8. Ignoring that the claim was both unpreserved and patently incredible in the absence of any explanation as to (a) what “very significant information” could have been discerned or (b) why the dismantled scaffolding could no longer be examined, the key point is that the claim was based on the same so- called “evidence” as every other factual assertion respondents made. Their counsel said so. Even allowing that the inquiry dictated by GML § 50-e[5] is largely discretionary, there is simply no way that an attorney’s affirmation (or appellate reply brief) can be deemed a “particularized evidentiary showing” of anything. In consequence, regardless of whether leave was ultimately granted or denied, the issue 29 of substantial prejudice should have been resolved as a matter of law in the petitioner’s favor. 30 Conclusion The order appealed from should be reversed and either the petitioner’s application should be granted or the matter should be remanded so that the Appellate Division can this time apply the correct legal standards. Dated: New York, New York July 24, 2017 Respectfully submitted, NEW YORK STATE TRIAL LAWYERS ASSOCIATION MATTHEW A. FUNK, Esq., President 132 Nassau Street, 2d Floor New York, New York 10038 (212)344-5890 By: ______________________________ Brian J. Shoot SULLIVAN PAPAIN BLOCK McGRATH & CANNAVO 120 Broadway, 18th Floor New York, New York 10271 (212)732-9000 bshoot@triallaw1.com 31 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR § 500.13(c) that the foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Garamond Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of the statement of the status of related litigation; the corporate disclosure statement; the table of contents, the table of cases and authorities and the statement of questions presented required by subsection (a) of this section; and any addendum containing material required by § 500.1(h) is 6,845. Dated: September 11, 2017 Respectfully submitted, NEW YORK STATE TRIAL LAWYERS ASSOCIATION MATTHEW A. FUNK, Esq., President 132 Nassau Street, 2d Floor New York, New York 10038 (212)344-5890 By: ______________________________ Brian J. Shoot 32 SULLIVAN PAPAIN BLOCK McGRATH & CANNAVO 120 Broadway, 18th Floor New York, New York 10271 (212)732-9000 bshoot@triallaw1.com