Preview
FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------x
KRISTIN BALLAS, Index #:152786/2023
Petitioner,
-against-
AMENDED PETITION
NEW YORK CONVENTION CENTER OPERATING
CORPORATION, d/b/a THE JACOB K. JAVITS
CONVENTION CENTER,
Respondents.
----------------------------------------------------------------------x
ROSA M. FEENEY, an attorney duly admitted to practice law in the State of New
York, hereby affirms the following under the penalties of perjury:
1. I am a partner of the firm of Smiley & Smiley, LLP, attorneys for the
petitioner herein and, as such, I am fully familiar with the facts and circumstances of this matter.
2. This amended petition is respectfully submitted in support of the within
application by the petitioner for leave to serve a late Notice of Claim pursuant to General Municipal
Law §50-e (5) and Public Authorities Law § 2570, upon the Respondents, NEW YORK
CONVENTION CENTER OPERATING CORPORATION, d/b/a THE JACOB K. JAVITS
CONVENTION CENTER (hereinafter “JAVITS”), and to have the proposed Notice of Claim,
annexed hereto as Exhibit “A”, and the Summons and Complaint, annexed hereto as Exhibit “B”,
deemed filed and served nunc pro tunc.
3. A Federal Court action was previously commenced against JAVITS,
entitled, Kristin Ballas v. Greenhouse Software, Inc. and New York Convention Center Operating
Corporation, d/b/a The Jacob K. Javits Convention Center, Civil Case #: 1:22-cv-10332 on
1
1 of 9
FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023
December 6, 2022.
4. A voluntary discontinuance, without prejudice, as to JAVITS only, was
effectuated so that Petitioner could file the instant motion before the Supreme Court. (Exhibit “C”)
BACKGROUND FACTS
5. On May 25, 2022, KRISTIN BALLAS attended a technology conference,
sponsored by Greenhouse Software, Inc., at the JAVITS convention center, when she sat on a
“swing chair/table,” which was located on the 4th floor of the facility, which was exhibited for
patrons of the convention to utilize. As she sat on the “swing chair/table,” the apparatus fell and
collapsed on top of her, causing severe and significant, permanent personal injuries. (Affidavit of
KRISTEN BALLAS annexed hereto as Exhibit “D”)
6. The Petitioner claims that respondents, through their agents, servants and/or
employees were negligent in failing to properly select, assemble, install, secure, anchor, operate,
control, manage, inspect, repair, maintain, and supervise, direct and manage the aforesaid “swing
chair/table” on the 4th floor of the aforesaid premises; in causing and permitting an unsafe and
hazardous condition to exist at the aforesaid premises; in failing to inspect, maintain, repair or
replace the extremely hazardous conditions aforementioned; in suffering, causing and permitting
the plaintiff to enter into a position of danger; in subjecting said plaintiff to unusual and
unnecessary hazards and dangers; in failing to employ adequate and sufficient help to properly
maintain and inspect the aforementioned area; in violating the Administrative Code and the
Building Code of the City of New York; in causing and permitting the condition that brought about
the collapse of the aforementioned “swing chair/table” at said premises; in creating a trap; in
creating a nuisance, and in failing to maintain the aforesaid area in a reasonably, safe and suitable
2
2 of 9
FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023
condition.
7. As a result of this accident, KRISTIN BALLAS sustained severe and
permanent personal injuries, including a traumatic brain injury and cervical injuries, among other
injuries.
8. This motion is submitted seeking an order to file a late notice of claim and
to file a Summons and Complaint to incorporate the service of the timely Notice of Claim and
deem the attached Notice of Claim and Summons and Complaint filed and served nunc pro tunc.
9. Petitioner provided notice of the accident to JAVITS, on the actual date of
the accident. Petitioner was in the JAVITS medical office immediately after the accident and was
taken by ambulance from the medical office. See, Exhibit “E.”
10. As can be seen from the report, the Petitioner’s name, address and the details
of the accident were included. Furthermore, her complaints of personal injury were documented
in the report.
11. Despite having requested a copy of the JAVITS accident report on the date
of the accident, she was not provided with a copy on that date. Petitioner therefore contacted “Dan”
of the Security Command Center at JAVITS, eight (8) days after her accident, on June 2, 2022, to
request a copy of the accident report. She was provided with the phone number for the paramedic,
Jason Robinowitz. “Jason,” called her back and advised that there were JAVITS security
personnel who also took a picture of a copy of the report and would contact them to get a copy.
She asked him to please text her a copy of the accident report.
12. On June 2, 2022, Jason sent Petitioner a copy of the accident report. See
Exhibit “D” and “F.”
3
3 of 9
FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023
13. As set forth in the annexed Affidavit of KRISTIN BALLAS and the screen
shots of the text messages with “JASON”, JAVITS had a copy of this report in its file and “Jason”
advised that one of the JAVITS security people were at the medical office and took a picture of
the ambulance report. Exhibit “F.”
14. Additionally, a Federal Court action was commenced against JAVITS,
entitled, Kristen Ballas v. Greenhouse Software, Inc. and New York Convention Center Operating
Corporation, d/b/a The Jacob K. Javits Convention Center, Civil Case#: 1:22-cv-10332 and the
complaint was filed within 6 months of the accident. Well within one year and ninety days, as
required by General Municipal Law §50-i (1)(c).
15. However, General Municipal Law§50–e (7), provides as follows:
Applications under this section. All applications under this section shall be made to
the supreme court or to the county court: (a) in a county where the action may
properly be brought for trial, (b) if an action to enforce the claim has been
commenced, in the county where the action is pending, or c) in the event that there
is no motion term available in any of the counties specified in clause (a) or (b)
hereof, in any adjoining county. Where the application is for leave to serve a late
notice of claim, it shall be accompanied by a copy of the proposed notice of claim.
16. Therefore, the Federal Court action has since been discontinued without
prejudice, as to JAVITS only, since the Federal Court lacks jurisdiction to decide this motion to
file a late Notice of Claim. See Exhibit “C.”
17. Additionally, while this office was not retained until September 8, 2022,
correspondence and letters requesting preservation of evidence were sent by your affiant’s office
to JAVITS on September 8, 2022 and September 30, 2022. Exhibit “G.”
18. KRISTIN BALLAS was unaware that JAVITS was required to be served
with a notice of claim pursuant to Public Authorities Law §2570, however JAVITS cannot
4
4 of 9
FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023
establish that it was substantially prejudiced by this late filing, since they were aware of the
accident on the date it occurred. Furthermore, a notice of preservation was sent 106 days from the
happening of the accident.
19. The decision to grant or deny a petition for leave to serve a late notice of
claim rests in the broad discretion of the court upon consideration of all relevant factors. Cruz v.
New York City Hous. Auth., 178 AD2nd 291 (1st Dep't.1991), Matter of Harris v. Dormitory
Auth., 168 AD2nd 560 (2nd Dep’t. 1990).
20. In determining whether to permit a late notice of claim, the court considers
(1) whether respondents received actual notice of the essential facts of petitioner's claim within 90
days after it arose, (2) whether petitioner demonstrates a reasonable excuse for failing to serve the
notice of claim timely, or (3) whether the delay substantially prejudiced respondents. Sproule v.
New York Convention Ctr. Operating Corp., 180 A.D.3d 496, 497, 120 N.Y.S.3d 5 (1st Dep't
2020); Williams v New York Convention Ctr. Operating Corp., 2020 N.Y. Misc. LEXIS 5263,
2020 NY Slip Op 32849(U) (NY County 2020); Rodriguez v. City of New York, 172 A.D.3d 556,
557, 101 N.Y.S.3d 303 (1st Dep't 2019); Mercedes v. City of New York, 169 A.D.3d 606, 607, 94
N.Y.S.3d 69 (1st Dep't 2019); Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466,
45 N.Y.S.3d 895, 68 N.E.3d 714 (2016).
21. However, “The presence or absence of any one factor, is not determinative.”
Matter of Thomas v. City of New York,118 A.D.3d 537, 538, 988 N.Y.S.2d 152 (1st Dept. 2014).
see, Matter of Farrell v. City of New York, 191 AD2d 698 ( 2nd Dept. 1993) ; Matter of Charles
v. New York City Health & Hospitals Corp., 166 AD2nd 526 (2nd Dept. 1990); General Municipal
Law §50-e, McKinney’s Consolidated Laws of New York.
5
5 of 9
FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023
22. The merit of the instant application is readily apparent upon consideration
of these factors.
POINT I
JAVITS HAD ACTUAL NOTICE
OF THE ESSENTIAL FACTS CONSTITUTING THE CLAIM
23. The Respondents had actual notice of the claim asserted herein by virtue of
its investigation at the time of the accident. Specifically, the accident occurred on the JAVITS
grounds, there was JAVITS security present, and an ambulance was called to the JAVITS center
and KRISTIN BALLAS was taken to the JAVITS medical office on the 4th floor immediately after
the accident. (See Exhibit “A” and “C”)
24. Further, as can be seen from the Petitioner’s Affidavit and the text messages
from “Jason,” JAVITS cannot contest that they were aware of the accident and the claimed injuries
on the date of the accident. The Petitioner was brought to the JAVITS medical office and there
were JAVITS security personnel at the office. Further, a copy of the accident report was provided
to the Petitioner from JAVITS. There can be no question that JAVITS has actual notice of the
accident and claimed injuries.
25. KRISTIN BALLAS had no reason to believe she needed to file a notice of
claim, since JAVITS was clearly aware of the accident and was aware that an extremely large
swing apparatus fell on top of a patron who was then removed by ambulance for emergency
treatment.
26. Furthermore, notices of preservation of the evidence were sent to JAVITS
on September 8, 2022 and September 30, 2022.
27. Additionally, a Federal Court action was commenced and JAVITS was
6
6 of 9
FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023
served with the complaint on January 5, 2023. An attorney representing JAVITS filed a motion to
dismiss for failure to file a late notice of claim, which motion resulted in the voluntary
discontinuance, without prejudice, as to JAVITS only , which has resulted in the present motion,
to this court, which has the proper jurisdiction.
28. There can be no doubt that JAVITS was aware of the accident and the
claims arising therefrom on the date it occurred and well within the one year and ninety days of
the accident, which has not yet elapsed.
29. Based on the response and investigation by JAVITS, it is not possible for
JAVITS to argue that they did not have actual notice of this claim.
30. In Williams, supa., a case against JAVITS, the actual knowledge of JAVITS
of the accident within 90 days was an important factor in granting the application for the filing of
a late notice of claim.
31. In Sproule, supra., another case against JAVITS, the plaintiff failed to file
a timely notice of claim and the court in granting the extension of time to file the notice of claim
and amend the complaint found that JAVITS acquired actual notice of the event within a
reasonable time and that it was not substantially prejudiced. In that case, JAVITS conceded it had
knowledge on the date of the accident.
32. It is clear under the facts of this case, JAVITS acquired knowledge of this
accident on the day it occurred and was subsequently contacted by the Petitioner and the
ambulance company. Furthermore, correspondence regarding the preservation of evidence was
sent to JAVITS within 106 days from the date of the accident. Further, the Federal Court complaint
was filed within six months of the accident and an attorney, on behalf of JAVITS filed a motion
7
7 of 9
FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023
on its behalf.
33. JAVITS has clearly had ample opportunity to investigate the claim. There
is no substantial prejudice in filing a late notice of claim or filing the Complaint, since this case is
at its infancy. Further, the Federal Court action commenced well within the one year and ninety
days, after the claim accrued and the proposed Notice of Claim and Complaint are also being filed
within one year and ninety days of the accident.
34. The one year and ninety days from May 25, 2022 will be on August 23,
2023. We were required to voluntarily discontinue against JAVITS, without prejudice, since the
Federal court lacked jurisdiction to entertain this application. We therefore request an order
deeming the proposed Summons and Complaint filed and served on JAVITS (Exhibit “B”), to
preserve the Statute of Limitations.
POINT II
JAVITS WILL NOT BE PREJUDICED IN MAINTAINING
A DEFENSE TO THIS ACTION
35. Permitting a late Notice of Claim will not prejudice JAVITS in maintaining
a defense on the merits due to the fact that they had actual notice of the facts in question on the
date of the accident. In Matter of Beary v. City of Rye, 406 N.Y.S.2d 9 (1978) the Court of Appeals
held that “actual knowledge of the facts... makes it unlikely that prejudice will flow from a delay
in filing.” Beary at 14. Having conducted an investigation into this accident, and/or having had
the opportunity to do so, JAVITS cannot make a good faith argument of prejudice.
POINT III
REASONABLE DELAY
36. As set forth above, JAVITS was aware of this accident and claim on the
8
8 of 9
FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023
date it occurred. There were several JAVITS personnel at the scene and they arranged for
KRISTIN BALLAS to be transferred by ambulance to the hospital. In addition, a few days later
JAVITS was contacted again, seeking a copy of the accident report. That same day, the ambulance
personnel contacted JAVITS seeking a copy of the ambulance report. Further, preservation letters
were sent, and a Federal Court action was commenced.
37. One year and ninety days from the date of the accident have not elapsed and
we request permission to deem the notice of claim and the summons and complaint filed in a timely
manner.
38. The passage of time alone is insufficient to establish prejudice. Rodriguez,
supra.
39. Based upon the above, Petitioner respectfully requests that this court permit
Petitioner to file, and deem served, nunc pro tunc, the annexed Notice of Claim, and Summons
and Complaint against JAVITS, upon consideration of all the facts as contained herein.
40. No prior application has been made for the relief herein sought.
WHEREFORE, it is respectfully requested that this Court grant the petitioners:
i. Leave to serve a late Notice of Claim pursuant to General Municipal Law §50-e(5) and
deem the proposed Notice of Claim annexed hereto served, nunc pro tunc;
ii. Deem the annexed Summons and Complaint filed and served upon JAVITS; and
iii. together with such other and further relief as this Court may seem just and proper.
Dated: New York, New York ______________________________
March 27, 2023 ROSA M. FEENEY
9 of 9
Preview
FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------x KRISTIN BALLAS, Index #:152786/2023 Petitioner, -against- AMENDED PETITION NEW YORK CONVENTION CENTER OPERATING CORPORATION, d/b/a THE JACOB K. JAVITS CONVENTION CENTER, Respondents. ----------------------------------------------------------------------x ROSA M. FEENEY, an attorney duly admitted to practice law in the State of New York, hereby affirms the following under the penalties of perjury: 1. I am a partner of the firm of Smiley & Smiley, LLP, attorneys for the petitioner herein and, as such, I am fully familiar with the facts and circumstances of this matter. 2. This amended petition is respectfully submitted in support of the within application by the petitioner for leave to serve a late Notice of Claim pursuant to General Municipal Law §50-e (5) and Public Authorities Law § 2570, upon the Respondents, NEW YORK CONVENTION CENTER OPERATING CORPORATION, d/b/a THE JACOB K. JAVITS CONVENTION CENTER (hereinafter “JAVITS”), and to have the proposed Notice of Claim, annexed hereto as Exhibit “A”, and the Summons and Complaint, annexed hereto as Exhibit “B”, deemed filed and served nunc pro tunc. 3. A Federal Court action was previously commenced against JAVITS, entitled, Kristin Ballas v. Greenhouse Software, Inc. and New York Convention Center Operating Corporation, d/b/a The Jacob K. Javits Convention Center, Civil Case #: 1:22-cv-10332 on 1 1 of 9 FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023 December 6, 2022. 4. A voluntary discontinuance, without prejudice, as to JAVITS only, was effectuated so that Petitioner could file the instant motion before the Supreme Court. (Exhibit “C”) BACKGROUND FACTS 5. On May 25, 2022, KRISTIN BALLAS attended a technology conference, sponsored by Greenhouse Software, Inc., at the JAVITS convention center, when she sat on a “swing chair/table,” which was located on the 4th floor of the facility, which was exhibited for patrons of the convention to utilize. As she sat on the “swing chair/table,” the apparatus fell and collapsed on top of her, causing severe and significant, permanent personal injuries. (Affidavit of KRISTEN BALLAS annexed hereto as Exhibit “D”) 6. The Petitioner claims that respondents, through their agents, servants and/or employees were negligent in failing to properly select, assemble, install, secure, anchor, operate, control, manage, inspect, repair, maintain, and supervise, direct and manage the aforesaid “swing chair/table” on the 4th floor of the aforesaid premises; in causing and permitting an unsafe and hazardous condition to exist at the aforesaid premises; in failing to inspect, maintain, repair or replace the extremely hazardous conditions aforementioned; in suffering, causing and permitting the plaintiff to enter into a position of danger; in subjecting said plaintiff to unusual and unnecessary hazards and dangers; in failing to employ adequate and sufficient help to properly maintain and inspect the aforementioned area; in violating the Administrative Code and the Building Code of the City of New York; in causing and permitting the condition that brought about the collapse of the aforementioned “swing chair/table” at said premises; in creating a trap; in creating a nuisance, and in failing to maintain the aforesaid area in a reasonably, safe and suitable 2 2 of 9 FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023 condition. 7. As a result of this accident, KRISTIN BALLAS sustained severe and permanent personal injuries, including a traumatic brain injury and cervical injuries, among other injuries. 8. This motion is submitted seeking an order to file a late notice of claim and to file a Summons and Complaint to incorporate the service of the timely Notice of Claim and deem the attached Notice of Claim and Summons and Complaint filed and served nunc pro tunc. 9. Petitioner provided notice of the accident to JAVITS, on the actual date of the accident. Petitioner was in the JAVITS medical office immediately after the accident and was taken by ambulance from the medical office. See, Exhibit “E.” 10. As can be seen from the report, the Petitioner’s name, address and the details of the accident were included. Furthermore, her complaints of personal injury were documented in the report. 11. Despite having requested a copy of the JAVITS accident report on the date of the accident, she was not provided with a copy on that date. Petitioner therefore contacted “Dan” of the Security Command Center at JAVITS, eight (8) days after her accident, on June 2, 2022, to request a copy of the accident report. She was provided with the phone number for the paramedic, Jason Robinowitz. “Jason,” called her back and advised that there were JAVITS security personnel who also took a picture of a copy of the report and would contact them to get a copy. She asked him to please text her a copy of the accident report. 12. On June 2, 2022, Jason sent Petitioner a copy of the accident report. See Exhibit “D” and “F.” 3 3 of 9 FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023 13. As set forth in the annexed Affidavit of KRISTIN BALLAS and the screen shots of the text messages with “JASON”, JAVITS had a copy of this report in its file and “Jason” advised that one of the JAVITS security people were at the medical office and took a picture of the ambulance report. Exhibit “F.” 14. Additionally, a Federal Court action was commenced against JAVITS, entitled, Kristen Ballas v. Greenhouse Software, Inc. and New York Convention Center Operating Corporation, d/b/a The Jacob K. Javits Convention Center, Civil Case#: 1:22-cv-10332 and the complaint was filed within 6 months of the accident. Well within one year and ninety days, as required by General Municipal Law §50-i (1)(c). 15. However, General Municipal Law§50–e (7), provides as follows: Applications under this section. All applications under this section shall be made to the supreme court or to the county court: (a) in a county where the action may properly be brought for trial, (b) if an action to enforce the claim has been commenced, in the county where the action is pending, or c) in the event that there is no motion term available in any of the counties specified in clause (a) or (b) hereof, in any adjoining county. Where the application is for leave to serve a late notice of claim, it shall be accompanied by a copy of the proposed notice of claim. 16. Therefore, the Federal Court action has since been discontinued without prejudice, as to JAVITS only, since the Federal Court lacks jurisdiction to decide this motion to file a late Notice of Claim. See Exhibit “C.” 17. Additionally, while this office was not retained until September 8, 2022, correspondence and letters requesting preservation of evidence were sent by your affiant’s office to JAVITS on September 8, 2022 and September 30, 2022. Exhibit “G.” 18. KRISTIN BALLAS was unaware that JAVITS was required to be served with a notice of claim pursuant to Public Authorities Law §2570, however JAVITS cannot 4 4 of 9 FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023 establish that it was substantially prejudiced by this late filing, since they were aware of the accident on the date it occurred. Furthermore, a notice of preservation was sent 106 days from the happening of the accident. 19. The decision to grant or deny a petition for leave to serve a late notice of claim rests in the broad discretion of the court upon consideration of all relevant factors. Cruz v. New York City Hous. Auth., 178 AD2nd 291 (1st Dep't.1991), Matter of Harris v. Dormitory Auth., 168 AD2nd 560 (2nd Dep’t. 1990). 20. In determining whether to permit a late notice of claim, the court considers (1) whether respondents received actual notice of the essential facts of petitioner's claim within 90 days after it arose, (2) whether petitioner demonstrates a reasonable excuse for failing to serve the notice of claim timely, or (3) whether the delay substantially prejudiced respondents. Sproule v. New York Convention Ctr. Operating Corp., 180 A.D.3d 496, 497, 120 N.Y.S.3d 5 (1st Dep't 2020); Williams v New York Convention Ctr. Operating Corp., 2020 N.Y. Misc. LEXIS 5263, 2020 NY Slip Op 32849(U) (NY County 2020); Rodriguez v. City of New York, 172 A.D.3d 556, 557, 101 N.Y.S.3d 303 (1st Dep't 2019); Mercedes v. City of New York, 169 A.D.3d 606, 607, 94 N.Y.S.3d 69 (1st Dep't 2019); Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 (2016). 21. However, “The presence or absence of any one factor, is not determinative.” Matter of Thomas v. City of New York,118 A.D.3d 537, 538, 988 N.Y.S.2d 152 (1st Dept. 2014). see, Matter of Farrell v. City of New York, 191 AD2d 698 ( 2nd Dept. 1993) ; Matter of Charles v. New York City Health & Hospitals Corp., 166 AD2nd 526 (2nd Dept. 1990); General Municipal Law §50-e, McKinney’s Consolidated Laws of New York. 5 5 of 9 FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023 22. The merit of the instant application is readily apparent upon consideration of these factors. POINT I JAVITS HAD ACTUAL NOTICE OF THE ESSENTIAL FACTS CONSTITUTING THE CLAIM 23. The Respondents had actual notice of the claim asserted herein by virtue of its investigation at the time of the accident. Specifically, the accident occurred on the JAVITS grounds, there was JAVITS security present, and an ambulance was called to the JAVITS center and KRISTIN BALLAS was taken to the JAVITS medical office on the 4th floor immediately after the accident. (See Exhibit “A” and “C”) 24. Further, as can be seen from the Petitioner’s Affidavit and the text messages from “Jason,” JAVITS cannot contest that they were aware of the accident and the claimed injuries on the date of the accident. The Petitioner was brought to the JAVITS medical office and there were JAVITS security personnel at the office. Further, a copy of the accident report was provided to the Petitioner from JAVITS. There can be no question that JAVITS has actual notice of the accident and claimed injuries. 25. KRISTIN BALLAS had no reason to believe she needed to file a notice of claim, since JAVITS was clearly aware of the accident and was aware that an extremely large swing apparatus fell on top of a patron who was then removed by ambulance for emergency treatment. 26. Furthermore, notices of preservation of the evidence were sent to JAVITS on September 8, 2022 and September 30, 2022. 27. Additionally, a Federal Court action was commenced and JAVITS was 6 6 of 9 FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023 served with the complaint on January 5, 2023. An attorney representing JAVITS filed a motion to dismiss for failure to file a late notice of claim, which motion resulted in the voluntary discontinuance, without prejudice, as to JAVITS only , which has resulted in the present motion, to this court, which has the proper jurisdiction. 28. There can be no doubt that JAVITS was aware of the accident and the claims arising therefrom on the date it occurred and well within the one year and ninety days of the accident, which has not yet elapsed. 29. Based on the response and investigation by JAVITS, it is not possible for JAVITS to argue that they did not have actual notice of this claim. 30. In Williams, supa., a case against JAVITS, the actual knowledge of JAVITS of the accident within 90 days was an important factor in granting the application for the filing of a late notice of claim. 31. In Sproule, supra., another case against JAVITS, the plaintiff failed to file a timely notice of claim and the court in granting the extension of time to file the notice of claim and amend the complaint found that JAVITS acquired actual notice of the event within a reasonable time and that it was not substantially prejudiced. In that case, JAVITS conceded it had knowledge on the date of the accident. 32. It is clear under the facts of this case, JAVITS acquired knowledge of this accident on the day it occurred and was subsequently contacted by the Petitioner and the ambulance company. Furthermore, correspondence regarding the preservation of evidence was sent to JAVITS within 106 days from the date of the accident. Further, the Federal Court complaint was filed within six months of the accident and an attorney, on behalf of JAVITS filed a motion 7 7 of 9 FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023 on its behalf. 33. JAVITS has clearly had ample opportunity to investigate the claim. There is no substantial prejudice in filing a late notice of claim or filing the Complaint, since this case is at its infancy. Further, the Federal Court action commenced well within the one year and ninety days, after the claim accrued and the proposed Notice of Claim and Complaint are also being filed within one year and ninety days of the accident. 34. The one year and ninety days from May 25, 2022 will be on August 23, 2023. We were required to voluntarily discontinue against JAVITS, without prejudice, since the Federal court lacked jurisdiction to entertain this application. We therefore request an order deeming the proposed Summons and Complaint filed and served on JAVITS (Exhibit “B”), to preserve the Statute of Limitations. POINT II JAVITS WILL NOT BE PREJUDICED IN MAINTAINING A DEFENSE TO THIS ACTION 35. Permitting a late Notice of Claim will not prejudice JAVITS in maintaining a defense on the merits due to the fact that they had actual notice of the facts in question on the date of the accident. In Matter of Beary v. City of Rye, 406 N.Y.S.2d 9 (1978) the Court of Appeals held that “actual knowledge of the facts... makes it unlikely that prejudice will flow from a delay in filing.” Beary at 14. Having conducted an investigation into this accident, and/or having had the opportunity to do so, JAVITS cannot make a good faith argument of prejudice. POINT III REASONABLE DELAY 36. As set forth above, JAVITS was aware of this accident and claim on the 8 8 of 9 FILED: NEW YORK COUNTY CLERK 03/27/2023 06:40 AM INDEX NO. 152786/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/27/2023 date it occurred. There were several JAVITS personnel at the scene and they arranged for KRISTIN BALLAS to be transferred by ambulance to the hospital. In addition, a few days later JAVITS was contacted again, seeking a copy of the accident report. That same day, the ambulance personnel contacted JAVITS seeking a copy of the ambulance report. Further, preservation letters were sent, and a Federal Court action was commenced. 37. One year and ninety days from the date of the accident have not elapsed and we request permission to deem the notice of claim and the summons and complaint filed in a timely manner. 38. The passage of time alone is insufficient to establish prejudice. Rodriguez, supra. 39. Based upon the above, Petitioner respectfully requests that this court permit Petitioner to file, and deem served, nunc pro tunc, the annexed Notice of Claim, and Summons and Complaint against JAVITS, upon consideration of all the facts as contained herein. 40. No prior application has been made for the relief herein sought. WHEREFORE, it is respectfully requested that this Court grant the petitioners: i. Leave to serve a late Notice of Claim pursuant to General Municipal Law §50-e(5) and deem the proposed Notice of Claim annexed hereto served, nunc pro tunc; ii. Deem the annexed Summons and Complaint filed and served upon JAVITS; and iii. together with such other and further relief as this Court may seem just and proper. Dated: New York, New York ______________________________ March 27, 2023 ROSA M. FEENEY 9 of 9