In the Matter of Ryszard Grajko, Appellant,v.City of New York, et al., Respondents.BriefN.Y.November 14, 2017August 21, 2017 New York State Court of Appeals 20 Eagle Street Albany, New York 11207-1095 Re: Matter of Grajko v. City of New York APL – 2017-00120 Dear Clerk of the Court: Our office represents the Respondents-Respondents (hereinafter “Respondents”) in the above referenced matter. We respectfully submit this letter pursuant to the Court’s abbreviated procedures set forth in §500.11 of the Court’s Rule of Practice. I write to respond to the Petitioner-Appellant’s (hereinafter “Appellant”) submissions covering both the merits of the appeal and the Court’s jurisdictional inquiry. PRELIMINARY STATEMENT This honorable Court is one of limited jurisdiction that only reviews constitutional questions and questions of law that meet certain statutory jurisdictional predicates. An appeal as of right is only granted if a two-justice dissent was issued on a matter of law in the appellants favor. 22 NYCRR 500.10; CPLR 5601(a). Here, a split 3-2 decision was issued by the Appellate Division, First 2 Department, which overturned a lower court ruling granting leave to the Appellant to file a late notice of claim. The dissent issued a decision that objected to the manner in which the majority applied the facts of the case to the newly issued Court decision of Newcomb v. Middle Country Sch Dist., 28 N.Y.3d 455 (2016). The dissent was not on a matter of law or the proper legal standard for leave to file a notice of claim. A plain reading of the dissent illustrates that the minority justices felt that the Appellant’s lack of awareness of the seriousness of his injury was a reasonable excuse for his delay. They also determined that sufficient notice of the Appellant’s incident was received by insurance carrier of the Respondents by virtue of a workers compensation claim form. The dissent further determined that the Appellant adequately established a lack of prejudice to the Respondents. Essentially, the dissent believed that the Appellant sufficiently met his burden for leave, whereas the majority held that he did not. The disagreement between justices speaks to the manner of the application of the law to the facts. Not the proper legal standard by which to govern the facts. Where the proper legal standard is clear, and the dissent and majority disagree as to the sufficiency of the evidence in favor of a prima facie case, a question of law 3 is not presented. In those circumstances, dismissal of the appeal for lack of jurisdiction was proper.1 Notwithstanding, should this Court decide to hear the merits of the appeal, Respondents submit that the appellate court findings should be affirmed. The appeal was brought by Respondents to address an incorrect lower court ruling that permitted the Appellant to proceed with a late claim against the Respondent municipal entities. The Appellate Court correctly held that Appellant did not meet its prima facie burden, and reversed the lower courts grant for leave to file a late notice of claim. In addressing the Appellant’s reliance upon the Newcomb decision to support his allegation that the Respondents were not prejudiced, the Court factually distinguished the case from the instant matter due to the posture of the defendants. The Court in no way held that the Newcomb decision was inapplicable to the Grajko matter and did not limit the import of the Newcomb decision in any way to only a “limited number of Municipal Law 50(e) motions where another municipal entity was timely served.” Rather, the Court determined that a prima facie case was never met by the Appellant, and the lower court improperly exercised its discretion in granting leave. 1 Matter of Cindy M.G. v Michael A., appeal dism’d 71 NY2d 948 [1988] [difference between majority and dissent based on differing view of underlying facts, not applicable legal standard]. 4 The decision was a correct one, and for the foregoing reasons the Respondents request that the appellate court findings be affirmed. THE APPELLATE COURT DISSENT WAS NOT ON A QUESTION OF LAW When a dissenting appellate decision rests on a question of fact or discretion, the matter is not proper for this honorable Court’s review.2 Except in limited circumstances, the Court is constitutionally confined to examinations of question of law and will not make factual determinations regarding the weight of the evidence presented. Id. In the Grajko decision, the majority determined that the Appellant, at the outset, failed to meet the statutory requirements warranting leave to serve a late notice of claim. In finding that the three prongs (reasonable excuse, notice and prejudice) were not met, the appellate court determined that Appellant failed to meet his initial burden. Specifically with respect to the element of prejudice, the Court held that the Appellant’s reliance upon the Newcomb decision, as a basis for the grant for leave was misplaced. Nowhere in the Court’s decision did the Court hold that Newcomb was not binding on the instant case. Rather, the Court factually distinguished the Newcomb case for the purpose of addressing the Appellant’s arguments regarding his burden to establish lack of 2 Guaspari v. Gorsky, 29 N.Y.2d 891, 891–92, 278 N.E.2d 913 (1972). 5 prejudice. In the Newcomb decision, the appellate court noted that the petitioner met his burden of establishing a lack of prejudice by other factors besides the passage of time. The Court highlighted this fact for the purpose of illustrating that the Appellant, here, failed to do the same. The Court did not rule that the holding upon Newcomb was not binding, but rather ruled that the Appellant did not satisfy his burden as the Newcomb petitioner did. A reading of the dissent highlights a disagreement as to the sufficiency of the Appellant’s evidence in support of his initial showing for leave to file a late notice. The dissent found that the Appellant satisfied his entitlement to leave, whereas the majority did not. The dissent does not raise a question of law or a question of what standard was applicable to the instant facts. It presents arguments in disagreement as to the manner in which the majority applied the facts to the Newcomb decision. Respondents’ submit that such is not a question of law but rather a question of the weight of the evidence presented, and is not a matter proper for this honorable Court’s review. Notwithstanding, should the Court determine that the appellate dissent does rest on the application of a proper legal burden, Respondents’ respectfully submit that the majority decision was properly made. Using the standards set forth by the Newcomb decision, the Appellant did not meet his initial burden warranting leave to file a late notice of claim. 6 COUNTERSTATEMENT OF RELEVANT FACTS On July 15, 2015, 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. 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. Mr. Grajko purports to have reported his injuries to his non-party employer ABEX Inc. on the date of his incident, but neither an accident report, incident report nor correspondence reflecting his injuries and claims was generated. The only “report” generated as the result of his injury was a workers compensation claim form filed 13 days after his alleged incident. 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 plaintiff’s alleged second injury from a trip and fall on a scaffold platform. Respondents’ received a Notice of Claim regarding two alleged injuries by the Appellant on July 15, 2016, over nine months after the Notice of Claim deadline. The Notice of Claim was received one year after plaintiff’s accident and was the first time the Respondents were notified that Mr. Grajko alleges he sustained injury on a temporary scaffold. (R-39). It was also at that time that Respondents learned that the 7 scaffold was dismantled and/or removed the same day of his accident, before the Respondents were notified of Mr. Grajko’s injury and legal claims. THE APPELLATE COURT PROPERLY REVERSED THE LOWER COURT RULING AND DISMISSED APPELLANT’S PETITION As the Appellant properly noted in his abbreviated appeal submissions, when assessing whether leave should be granted to file a late notice of claim, the Court may consider all relevant factors and circumstances in determining whether a petitioner met his burden. Generally a petitioner must establish a reasonable excuse, notice and lack of prejudice to the municipal defendants. The court may use discretion in determining how much weight is afforded to the evidence in support of each factor. In this case, the appellate court properly determined that none of the factors were adequately met, and the Appellants evidence and arguments in support of each factor was insufficient. Reasonable Excuse The Appellant alleged that he was unaware of the seriousness and extent of his injury within the statutory time period. As this honorable Court is well aware, a failure to appreciate the severity of an injury is not a sufficient excuse under New York Law.3 Further, the appellate court noted that the Appellant filed a workers 3 Matter of Casale v City of New York, 95 A.D.3d 744, 945 N.Y.S.2d 92 (1st Dep’t 2012) 8 compensation claim within weeks of his accident. This fact weighed against the Appellant’s claim of unawareness. The Appellant now denies that he is making a claim of physical incapacity,4 but rather argues that he was generally “unaware of his rights” and unaware that his injuries would prohibit his employment. No matter how it is worded or alleged, the Appellant’s arguments are one that have been squarely rejected by the Court. Ignorance of the law is not accepted as a reasonable excuse for failure to timely file, and a petitioner will not be absolved of his duty to timely file due to a failure to appreciate his injuries.5 The appellate division properly rejected the Appellant’s arguments of incapacity and found that the Appellant failed to set forth a reasonable excuse for his delay. Notice With respect to Notice, the Appellant alleges that the Respondents received actual notice of the Appellant’s injury but virtue of his workers compensation claim 4 A claim of “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.4 No medical records, physician affidavits or other medical documentation was submitted in support of Appellant’s application, here. 5 Harris v. City of New York, 297 A.D.2d 473, 747 N.Y.S.2d 4 [2002], lv. denied 99 N.Y.2d 503, 753 N.Y.S.2d 806, 783 N.E.2d 896 [2002]); 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) 9 form, and by virtue of the Respondents’ additional insured status on a general liability insurance policy. This position fails to consider that Respondents are separate legal entities from the Workers Compensation Board,6 and fails to establish how the Respondents obtained notice of his legal claims by virtue of the claim form. 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.7 Such cannot be said in this case, because the report does not even remotely reflect how or what caused the Petitioners injury.8 The workers compensation form made no mention of any claim or injury with respect to a scaffold, did not specify the manner in which his shoulder was strained or injured, did not indicate that the Appellant tripped and fell on a scaffold, and contained no facts that would suggest that an investigation of the scaffold and its construction was required. The dissent, merely restated the elements required to establish entitlement to late notice and its opinion that given the evidence, the caselaw should be applied in an 6 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, 41 A.D.3d 378 (1st Dep’t 2007); Gold v. City of New York, 80 A.D.2d 138 (1st Dep’t 1981); New York City Charter § 521 (b); Education Law § 3183 (2). 7 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). 8 The form stated only that the Appellant sustained a shoulder strain/injury. (R 26) 10 opposite manner. With respect to the element of notice, the dissent indicated that the Appellants failed to set forth an affidavit that it “attempted to investigate the site or circumstances of the accident.” Stated simply, the Respondents could not submit an affidavit that adequately set forth steps taken to investigate Mr. Grajko’s claims, when it never had notice of his claims until the service of his late Notice of Claim over a year after his accident. The untimely notice was the Respondents’ first receipt of information regarding the Appellant’s claim.9 It is paradoxical to allege that the Respondents were required to show effort to identify facts of a claim it never knew of, and provide evidence of investigatory efforts when no knowledge of the claim existed to begin with. The majority acknowledged that the workers compensation claim form Appellant relied upon made no mention of any legal claims against the Respondent entities and correctly held that there was no evidence that the Respondents ever received the workers compensation form. The Respondents had no knowledge of the labor law claims within the statutory period or a reasonable time thereafter and the appellate court properly ruled that the petitioner failed to submit evidence to the contrary. The 9 Appellant concurrently served an Order to Show Cause for leave to file a late notice of claim, and served a summons and complaint at the same time. The Appellant did not satisfy its conditions precedent prior to the filing of the summons and complaint in Bronx County Supreme Court. 11 Appellant’s attempt at shifting the burden to the Respondents to establish a lack of notice does not alleviate him of his initial burden to show notice exists. Prejudice The basis for which the Appellant seeks this Court’s review is on the appellate courts findings regarding prejudice. The Appellant submits that the appellate court failed to properly apply the prejudice standard as set forth in the Newcomb decision. The Newcomb decision was issued during the pendency of the lower court order, and was not addressed in the original motion filings or the lower courts award of leave to file a late notice. Nonetheless, in applying the holdings Newcomb, it becomes clear that it the burden of establishing affirmative prejudice due to a failure to timely file, is shifted to the respondents only after an initial showing that a public corporation will not be prejudiced by the petitioner.10 Here, the appellate court concluded both that the Appellant failed to adequately establish prejudice, and that clear and explicit prejudice to the municipal defendants existed in the record. The Appellant alleged that the Respondents were not prejudiced by his late filing because, according to the Appellant, the Respondents were in possession of construction contracts and records regarding the project. The Appellant further attempted to dispel any prejudice to the Respondents by suggesting that witnesses 10 Newcomb v. Middle Country Cent. School Dist., 28 N.Y.3d 455, 466, 68 N.E.3d 714, 720 (2016) 12 could be located and photographs would be produced, but failed to actually produce or locate any such evidence in support of his petition. While the Appellant suggests that this case presents simple labor law issues, “which non-municipal defendants are required to defend against every day,” he fails to acknowledge how the facts of this case and the late notice prejudices the defense of this action. The Appellant acknowledged that he was injured, did not report the claim until weeks after his injury and permitted the scaffold, the alleged mechanism of injury, to be dismantled and removed prior to any inspection.11 When the Appellant was provided the opportunity to provide notice within the statutory timeframe to his employer and the workers compensation board in his C-2 form, he failed to do so and did not indicate that he tripped and fell or that the scaffold was a contributory factor in the happening of his injury, at any time. The Appellant further argues that the scaffold was a temporary, transitory condition, which would have changed irrespective of his legal claims. The argument is speculative and does not establish that prejudice would not result from his failure to notify anyone of his injuries. To the contrary, the transitory nature of the scaffold is the exact fact which weighs against the granting of an application for late notice, as the condition cannot now be recreated, examined or inspected.12 11 See, pages 30-31 of the appellate record. 12 Harris v. City of New York, 297 A.D.2d 473, 474, 747 N.Y.S.2d 4, 5 (1st Dep’t 2002). 13 The Respondents are not the Appellant’s employers and are not in possession of records regarding his specific work activity. Construction contracts and other daily report construction documents would not assist in the defense of a labor law claim where as in here, the construction of the specific instrumentality of alleged injury was owned, controlled, managed and maintained by plaintiff’s employer, a nonparty entity. The Appellant admitted that the project was not completed within the statutory time frame, which would have permitted the inspection and investigation of his legal claims in a reasonable time after its happenings had notice been provided while the project was active. The existence of prejudice which flows to the Respondents is not tangential occasioned merely by the passage of time. The prejudice, a specific inability to locate, preserve, investigate and gather information regarding the exact instrumentality of alleged injury, is a harm that in this case, is specific and identified. The Newcomb decision clarified the burden of proof when establishing the existence of prejudice. However, what qualifies as prejudice and to what extent evidence is illustrative of prejudice is a matter of judicial discretion. Here, the Appellant’s own affidavits and statements regarding the happenings of his accident, his inactions after his accident and the reporting (or lack thereof) of his claims, provided the framework by which the determination of prejudice was made. The appellate court accurately concluded not only that the Appellant failed to establish a 14 lack of prejudice, but concluded that the evidence as set forth before the Court was sufficient to establish that the prejudice to respondents was clear and explicit. CONCLUSION The appeal of this matter rests on a determination of the sufficiency of the evidence provided for leave to file a late notice of claim. The First Department Justices did not disagree as to the applicable standard of review. Rather, the appellate court dissent disagreed with the majority’s findings that the Appellant did not meet his burden. This matter does not present to this Court on a question of law or the applicable legal standard, but on the application of the facts to the law and the discretion exercised by the Court in its review. Respondents respectfully submit that this matter is not proper for this honorable Court’s review. However, to the extent that this Court intends to reach the merit of the appeal, the Respondents submit that the majority did not abuse its discretion and reached a proper result. The Appellant did not set forth a reasonable excuse for his delay in filing a timely notice of claim, did not submit evidence that the Respondents received actual notice of his claims within the statutory time frame. He further did not set forth sufficient evidence that the Respondents would not be prejudiced by the delay. For the reasons set forth above, Respondents respectfully request that this Court affirm the First Department Appellate Division’s ruling, and dismiss plaintiffs complaint in its entirety. Respectfully submitted, cO Pdfsha Requel Johnson Keith D. Grace CORNELL GRACE, P.C Attorneys for Defendant-Respondents 111 Broadway, Suite 810 New York, New York 10006 (212) 233-1100 Cc: Gregory J. Cannata & Associates, LLP Attorneys for the Petitioner-Appellant 60 East 42nd Street, Suite 932 New A/ork, New York 10165 (212) 553-9205 15 NEW YORK STATE COURT OF APPEALS CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR PART 500.l(j) that the foregoing letter brief was prepared on a computer using 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, certificate of compliance, corporate disclosure statement, questions presented, statement of related cases, or any authorized addendum containing statutes, rules, regulations, etc., is 3350 words. Respectfully submitted, Porsha Requel Johnson Keith D. Grace CORNELL GRACE, P.C Attorneys for Defendant-Respondents 111 Broadway, Suite 810 New York, New York 10006 (212) 233-1100