The following proposed approach toward motions to serve late notice of claim would best achieve the "equitable bal- ance" 208 sought by the legislature in enacting section 50-e(5) .209 194. N.Y. GEN. MUN. LAW § 50-e(5) (McKinney 1977). 195.

The reported ruling makes clear that the motion on appeal in Mompoint involved only the City of New York and only the General Municipal Law. The Second Department affirmed the dismissal of the Human Rights Law discrimination claims against the City of New York due to the plaintiffs’ failure to comply with the notice of claim requirements of General Municipal Law §§ 50-i and 50-e. That the New York City Board of Education may also have been a party to the case is immaterial to the Second Department’s holding in Mompoint, which specifically addressed only the City of New York’s motion to dismiss.

As such, Respondent respectfully requests that this court dismiss Petitioner’s assertion that the requirements of General Municipal Law Section 50-e and its case law are controlling. POINT II THE COURT SHOULD DISREGARD THE NEW FACTS AND THEORIES PETITIONER ADVANCES FOR THE FIRST TIME ON THIS APPEAL The Petitioner improperly seeks to augment the record by advancing new unsupported facts and legal arguments never presented or considered by the lower courts. These new facts and theories should be set aside by this Court and the appeal dismissed.

The basis for this finding was the court’s determination that §214-c of the New York Civil Practice Law and Rules (“CPLR”), which provides that statutes of limitations and the period of time to file notices of claim run from the date of discovery of a latent injury, fully protected the plaintiffs-appellants from any “serious injustice”. However, the Court 17 failed to recognize that despite the protections afforded to plaintiffs under CPLR §214-c, those protections were eviscerated by the short 90 day notice of claim requirements of GML §50-e. The very nature of this serious injustice is demonstrated by the District Court’s own actions. In 2009, the District Court dismissed over 600 complaints in the 21 MC 102 Docket for their failure to file timely notices of claim as against BPCA (Vol. I: A407).

53), Jimmy Nolan’s Law clearly satisfies this 15 Court’s reasonableness standard.3 The Legislature recognized that the extraordinary circumstances of the post 9/11 clean-up warranted an exception from the requirement of compliance with the 90-day deadline for filing a notice of claim with a public corporation. N.Y. Gen. Mun. Law § 50-e. As explained in the sponsor’s Memorandum in Support of Jimmy Nolan’s Law, the “tens of thousands of individuals” who “worked at the World Trade Center Site, as well as locations related to the debris removal and recovery of remains, for extensive periods of time” and were “advised and reassured that they were working in safe environments,” but have since developed “disabling” illnesses . . . . . . should not be denied their rights to seek just compensation simply because they were provided incorrect information about their work conditions, did not immediately recognize the causal connection between their injuries and their exposure, or were unaware of the applicable time limitations.

................... 7, 8 V Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 6 of 33 Mroz v. City of Tonawanda, 999 F. Supp. 436 (W.D.N.Y. 1998) ................................................ 19 Fischer v. Bank of Am., 2012 U.S. Dist. LEXIS, 2012 WL 1965371(D. Conn. May 31, 2012) .............................. 16 Reese v. Loew's Madison Hotel Corp., 65 F. Supp. 3d 235 (D.C. Dist. 2014) ............................. 13 Duarte v. Cal. Hotel & Casino, 08-00185 (JMS/KSC), 2008 WL 4133333 (D. Haw. Sept. 5, 2008) ................................. 13 New York Statutes N.Y. Pub. Hous. Law §157 ...................................................................................................... 19, 20 N.Y. Pub. Hous. Law §157(1) ................................................................................................. 18, 19 N.Y. Pub. Hous. Law §157(2) ................................................................................................. 19, 23 N.Y. Gen. Mun. Law §50-e ........................................................................................................... 19 N.Y. Gen. Bus. Law §349 ............................................................................................ 20, 21, 22, 23 N.Y. Real. Prop. Law §235-b ........................................................................................................ 25 New York Cases New York Court of Appeals Cases Gaidon v. Guardian Life Ins. Co. of Am., 720 N.E. 2d 1078, 96 N.Y. 2d 201, 727 N.Y.S. 2d 30, (2001) .................................... 21, 22 Stutman v. Chemical Bank, 731 N.E. 2d 608, 95 N.Y. 2d 24, 709 N.Y.S. 2d 892 (2000) ............ 20 Whitney v. Quaker Chem. Corp., 683 N.E. 2d 768, 90 N.Y. 2d 845, 660 N.Y.S. 2d 862(1997) ............................................ 23 New York Appellate Division Cases Brooks v. Key Trust Co. Natl. Assn., 26 A.D. 3d 628, 809 N.Y.S. 2d 270 (N.Y. App. Div. 3d Dept. 2006) app. dismissed, 850 N.E. 2d 672, 6 N.Y. 3d 89

230 (2001) (codified as amended at 49 U.S.C. § 40101 note), the United States District Court for the Southern District of New York 4 requirement under Section 50-e of the General Municipal Law specific to public corporations, which provides that where a notice of claim is required as a condition precedent to commencing an action against a public corporation, the notice must be served within 90 days after the claim arises. N.Y. Gen. Mun. Law § 50-e. Because Plaintiffs’ claims sought recovery for personal injury “caused by the latent effects of exposure to [a] substance of combination of substances,” their claims accrued on the date of discovery of the injury or the date “when through the exercise of reasonable diligence such injury should have been discovered.”

A222. In opposition, Plaintiffs acknowledged that, but for Jimmy Nolan’s Law, their claims would be untimely for failure to satisfy the notice of claim requirement of General Municipal Law §50-e. Cannata Plaintiffs’ Memo. in Opposition (hereinafter “Cannata Opp.”), 21 MC 102 ECF#5411 (S.D.N.Y. Aug. 22, 2014).

A notice of claim against a public corporation in New York must be served “within ninety days after the claim arises.” N.Y. Gen. Mun. Law § 50-e(1)(a). Further, Federal courts recognize that a plaintiff alleging a pendent state tort claim must comply with New York’s notice of claim rules.

13. Plaintiffs have complied with the requirements of New York General Municipal Law Section 50-i by making and serving a notice of claim on the County of Nassau on March 19, 2015, within the time required by New York General Municipal Law Section 50-e. More than thirty days have elapsed since the service of that notice, and no offer of settlement has been made.