Preview
FILED: NEW YORK COUNTY CLERK 10/19/2016 05:45 PM INDEX NO. 162629/2015
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/19/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------------- X
IN THE MATTER OF THE APPLICATION OF ANDRES AFFIRMATION IN
RODRIGUEZ, VII AND DAMARIZ RODRIGUEZ, OPPOSITION TO
MOTION TO REARGUE
Petitioners,
- against - Index No. 162629/2015
METROPOLITAN TRANSPORTATION AUTHORITY,
METROPOLITAN TRANSPORTATION AUTHORITY
CAPITAL CONSTRUCTION COMPANY, NEW YORK
CITY TRANSIT AUTHORITY. LONG ISLAND RAIL
ROAD and CITY OF NEW YORK,
Respondents.
------------------- X
JAMES T. DOUGHERTY, an attorney duly admitted to practice law in the Courts of
the State of New York, affirms the truth of the following under the penalty of perjury:
1. I am associated with the law firm of Landman Corsi Ballaine &Ford P.C.,
attorneys for respondents, and as such, and from a review of our files, I am fully familiar with
the facts and circumstances of this case.
2. This Affirmation is submitted in opposition to plaintiff's motion pursuant to
CPLR § 2221(d) seeking rearguement of the August 10, 2016 Order of Hon. Michael D.
Stallman denying the petition seeking leave to serve late notices of claim.
FACTUAL &PROCEDURAL HISTORY
3. This matter arises out of an alleged accident which occurred on December 16,
2014 in the East Side Access tunnel in the vicinity of 55th Street, New York, New York.
4. Notices of Claim must be served within 90 days of the alleged accident. Thus,
Notices of Claim were required to have been served by March 15, 2015.
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5. Petitioners failed to timely serve Notices of Claim and, after consulting with their
counsel on April 8, 2015, waited a further eight months until December 10, 2015, to file a
petition seeking leave to serve late Notices of Claim.
6. The petition was denied pursuant to Judge Stallman's August 10, 2016 Order
which found, inter alia, that plaintiff failed to set forth a reasonable excuse for the delay and that
respondents Metropolitan Transportation Authority ("MTA"), New York City Transportation
Authority ("NYCTA") and City of New York ("City") did not have actual notice of the
underlying claim.
7. In their application for reargument, petitioners do not attempt to justify their
failure to provide notice within the prescribed 90 day period or the year long delay between the
occurrence of the accident and the filing of the petition.
8. Instead, apparently ceding the issue, petitioners contend that this Court should
have found that Metropolitan Transportation Authority Capital Construction ("MTACC") acted
as an agent for the MTA and that the purported actual notice of the underlying December 16,
2014 accident received by MTACC should have therefore been imputed to the MTA.
9. Petitioners further argue that this Court should have held that MTA, NYCTA and
the City suffered no prejudice as a result of the plaintiff's failures and thus, the 90 day period
should be ignored.
10. As discussed below, however, this Court properly denied the petition given the
petitioners' failure to demonstrate a reasonable excuse for the delay and their failure to
demonstrate that the MTA, NYCTA or the City had independent knowledge of the facts essential
to petitioners' claims within 90 days following the accident.
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ARGUMENT
11. It is well settled that upon an application to file a late Notice of Claim, the Court
should consider whether there is: (1) a reasonable excuse for the delay; (2) whether the public
corporation acquired actual knowledge of the facts constituting the claim within 90 days or a
reasonable time thereafter; and (3) whether the public corporation's defense would be
substantially prejudiced by the delay. See Velazquez v. City of N. Y. Health & Hosps. Corp., 69
A.D.3d 441, 442, 894 N.Y.S.2d 15 (1st Dept. 2010).
12. Though the presence or absence of any one factor is not determinative, courts
have noted that the most important factor is whether the municipal respondent acquired actual
knowledge of the essential facts constituting the claim within 90 days following the incident. See
Plaza v. New York Health & Hosps. Corp., 97 AD3d 466, 467 (1st Dept. 2012) ("Proof of actual
knowledge, or lack thereof, is an important factor in determining whether the defendant is
substantially prejudiced by such a delay."); Padilla v. Department ofEduc. of the City ofN. Y., 90
A.D.3d 458, 459, 934 N.Y.S.2d 139 (1st Dept. 2011) ("The most important factor that a court
must consider in deciding such a motion is whether corporation counsel, ...acquired actual
knowledge of the essential facts constituting the claim within the time specified")
13. Regardless of the factors asserted, it is the burden of the party seeking leave to
demonstrate the existence of factors entitling them to relief. See Kelley v. Newyork City Health
& Hosps. Corp., 76 A.D.3d 824, 907 N.Y.S.2d 11 (15~ Dept. 2010) (Petitioner's failure to
demonstrate the lack of any prejudice warranted denial of petition for leave to serve late notice of
claim); Gitis v. City of New Yoriz, 68 A.D.3d 489, 490, 891 N.Y.S.2d 39, 39 (lst Dept. 2009)
(Petitioner's failure to demonstrate reasonable excuse for delay, actual notice to respondents or
lack of prejudice warranted denial of petition for leave to serve late notice of claim).
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14. In the instant matter, petitioners make no attempt to revisit the issue of whether
there was a reasonable excuse for the delay, but instead argue that MTA, NYCTA and/or the
City had actual, timely knowledge of the underlying basis for the claim because MTACC
purportedly came into possession of an accident report generated by petitioner Andres
Rodriguez' employer.
15. As an initial matter, the mere possession of an accident report does not, in and of
itself, establish that a respondent had actual knowledge of an incident. See Nacipucha v. City of
New York, 18 Misc. 3d 846, 849 N.Y.S.2d 414 (Sup. Ct. 2008) (citing Williams v. Nassau
County Med. Ctr., 6 N.Y.3d 531, 814 N.Y.S.2d 580, 847 N.E.2d 1154 (2d Dept. 2006).
16. However, assuming arguendo that the report constitutes notice to MTACC, as
petitioner argues, MTACC's knowledge is not imputed to any other respondents.
17. As Judge Stallman correctly noted, MTA, NYCTA, LIRR and the City are entities
separate and apart from each other and, most importantly, MTACC. See Public Authorities Law
§§ 1201; 1263; 1265-b(1) and 1266(5).
18. MTACC is, moreover, distinct from MTA and is individually subject to suit in its
own right. See Public Authorities Law §§ 1265-b(1) and 1266(5).
19. It is further well settled that notice to one municipal entity cannot be imputed to
another, legally distinct entity. See Seif v. City ofNew York, 218 A.D.2d 595, 593, 630 N.Y.S.2d
742, 744 (1995) (timely notice to NY City did not serve as notice to NYCHA); see also Ceely v.
New York City Health & Hosps. Corp., 162 A.D.2d 492, 493, 556 N.Y.S.2d 694, 695-96 (2d
Dept. 1990) (fact that City conducted General Municipal Law § 50—h and obtained medical
authorizations and was represented by same attorney did not defeat NYCHHC's defense that
plaintiff failed to properly serve a notice of claim).
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20. Unsupported by any statute or case law that would contradict Judge Stallnrian's
findings or the plain language of the statutes relied upon, petitioners nevertheless contend that
MTACC acted as an agent of the MTA and that this purported relationship transfers notice to
MTA.
21. This assertion is purportedly supported by selected language from a printout from
MTACC's website.
22. Nevertheless, a review of the printout confirms only that MTACC is a separate
agency which functions as a project manager for various "mega projects" for the MTA.
23. Petitioner provides no legal basis for why this Court should treat MTACC any
differently than a privately retained project manager, especially as the separation between
MTACC and MTA is statutorily defined. See Casale v. City of New York, 95 A.D.3d 744, 745,
945 N.Y.S.2d 92 (ls` Dept. 2012) (accident report given to general contractor and construction
manager was insufficient to impute notice upon City for the purpose of filing a late notice of
claim).
24. Thus, Judge Stallman was correct in determining that petitioner failed to
demonstrate that MTA, NYCTA and City of NY had actual notice of the subject incident.
25. Petitioners claim that Judge Stallman failed to acknowledge a purported. lack of
prejudice is similarly without merit.
26. It is well settled that Judge Stallman need not have addressed the issue of
prejudice, as it was established that there was no actual notice to MTA, NYCTA or City of New
York in the 90 days following the alleged accident. See Gonzalez v. City of New York, 127
A.D.3d 632, 634, 8 N.Y.S.3d 290, 292 (N.Y. App. Div. 2015) (finding no need to address issue
of prejudice where there was no reasonable excuse or timely actual notice); Padilla, 90 A.D.3d
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at 459 (holding that the question of whether actual notice was timely received is most important).
27. Further, petitioners bear the burden of establishing lack of prejudice. See Kelley,
76 A.D.3d 824; Gitis, 68 A.D.3d 489; see also Williams ex rel. Fowler v. Nassau Cry. Med. Ctr.,
6 N.Y.3d 531, 539, n3, 847 N.E.2d 1154 (2006) (declining to find error where the Appellate
Division "burdened [plaintiff] with the responsibility of showing lack of substantial prejudice").
28. Here, rather than meet their burden, petitioners attempt to argue that there can be
no prejudice to MTA by presuming that it had actual notice by way of the investigation report
acquired by MTACC.
29. This argument must fail as the purported notice does not extend to MTA (or
NYCTA or City of New York) for the reasons stated above.
30. Although petitioners cited Hosking v. City ofNew York, 139 A.D.3d 629, 630, 30
N.Y.S.3d 861 (1St Dept. 2016), that case is inappropriate because the decision was premised on
the defendant City having actual notice.
31. Although the Court in Richardson v. New York City Hous. Auth., 136 A.D.3d 484,
24 N.Y.S.3d 308 (1StDept. 2016) determined that a late Notice of Claim could be filed despite a
lack of actual notice, the decision was premised on the uncontested argument that the delay
caused no prejudice as there were no witnesses to be interviewed and as the sidewalk condition
which caused the incident was unchanged.
32. Here, however, unlike RichaNdson, there were, in fact, witnesses to interview.
Furthermore, based upon the intervening years of construction, use and wear, respondents cannot
now inspect the location or the machinery involved and expect them to be in the same condition
they were at the time of the alleged accident.
33. Thus, Judge Stallman correctly denied petitioner's application for leave to file late
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Notices of Claim.
WHEREFORE, respondents request an Order denying plaintiff's motion pursuant to
CPLR § 2221(d) seeking reargument of the August 10, 2016 Order of Hon. Michael D. Stallman
denying the petition seeking leave to serve late notices of claim.
Dated: New York, New York
October 19, 2016
LANDMAN CORSI BALLAINE &FORD P.C.
I~
ougherty, Esq.
ttorneys fogy^ Defendants
METROPOLITAN TRANSPORTATION
AUTHORITY, METROPOLITAN
TRANSPORTATION AUTHORITY CAPITAL
CONSTRUCTION COMPANY, NEW YORK
CITY TRANSIT AUTHORITY. LONG ISLAND
RAIL ROAD and CITY OF NEW YORK,
120 Broadway, 27th Floor
New York, New York 10271-0079
(212) 238-4800
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Preview
FILED: NEW YORK COUNTY CLERK 10/19/2016 05:45 PM INDEX NO. 162629/2015 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/19/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------- X IN THE MATTER OF THE APPLICATION OF ANDRES AFFIRMATION IN RODRIGUEZ, VII AND DAMARIZ RODRIGUEZ, OPPOSITION TO MOTION TO REARGUE Petitioners, - against - Index No. 162629/2015 METROPOLITAN TRANSPORTATION AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY CAPITAL CONSTRUCTION COMPANY, NEW YORK CITY TRANSIT AUTHORITY. LONG ISLAND RAIL ROAD and CITY OF NEW YORK, Respondents. ------------------- X JAMES T. DOUGHERTY, an attorney duly admitted to practice law in the Courts of the State of New York, affirms the truth of the following under the penalty of perjury: 1. I am associated with the law firm of Landman Corsi Ballaine &Ford P.C., attorneys for respondents, and as such, and from a review of our files, I am fully familiar with the facts and circumstances of this case. 2. This Affirmation is submitted in opposition to plaintiff's motion pursuant to CPLR § 2221(d) seeking rearguement of the August 10, 2016 Order of Hon. Michael D. Stallman denying the petition seeking leave to serve late notices of claim. FACTUAL &PROCEDURAL HISTORY 3. This matter arises out of an alleged accident which occurred on December 16, 2014 in the East Side Access tunnel in the vicinity of 55th Street, New York, New York. 4. Notices of Claim must be served within 90 days of the alleged accident. Thus, Notices of Claim were required to have been served by March 15, 2015. 4844-0698-9627v.1 1 of 7 5. Petitioners failed to timely serve Notices of Claim and, after consulting with their counsel on April 8, 2015, waited a further eight months until December 10, 2015, to file a petition seeking leave to serve late Notices of Claim. 6. The petition was denied pursuant to Judge Stallman's August 10, 2016 Order which found, inter alia, that plaintiff failed to set forth a reasonable excuse for the delay and that respondents Metropolitan Transportation Authority ("MTA"), New York City Transportation Authority ("NYCTA") and City of New York ("City") did not have actual notice of the underlying claim. 7. In their application for reargument, petitioners do not attempt to justify their failure to provide notice within the prescribed 90 day period or the year long delay between the occurrence of the accident and the filing of the petition. 8. Instead, apparently ceding the issue, petitioners contend that this Court should have found that Metropolitan Transportation Authority Capital Construction ("MTACC") acted as an agent for the MTA and that the purported actual notice of the underlying December 16, 2014 accident received by MTACC should have therefore been imputed to the MTA. 9. Petitioners further argue that this Court should have held that MTA, NYCTA and the City suffered no prejudice as a result of the plaintiff's failures and thus, the 90 day period should be ignored. 10. As discussed below, however, this Court properly denied the petition given the petitioners' failure to demonstrate a reasonable excuse for the delay and their failure to demonstrate that the MTA, NYCTA or the City had independent knowledge of the facts essential to petitioners' claims within 90 days following the accident. 4844-0698-9627v.1 2 of 7 ARGUMENT 11. It is well settled that upon an application to file a late Notice of Claim, the Court should consider whether there is: (1) a reasonable excuse for the delay; (2) whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days or a reasonable time thereafter; and (3) whether the public corporation's defense would be substantially prejudiced by the delay. See Velazquez v. City of N. Y. Health & Hosps. Corp., 69 A.D.3d 441, 442, 894 N.Y.S.2d 15 (1st Dept. 2010). 12. Though the presence or absence of any one factor is not determinative, courts have noted that the most important factor is whether the municipal respondent acquired actual knowledge of the essential facts constituting the claim within 90 days following the incident. See Plaza v. New York Health & Hosps. Corp., 97 AD3d 466, 467 (1st Dept. 2012) ("Proof of actual knowledge, or lack thereof, is an important factor in determining whether the defendant is substantially prejudiced by such a delay."); Padilla v. Department ofEduc. of the City ofN. Y., 90 A.D.3d 458, 459, 934 N.Y.S.2d 139 (1st Dept. 2011) ("The most important factor that a court must consider in deciding such a motion is whether corporation counsel, ...acquired actual knowledge of the essential facts constituting the claim within the time specified") 13. Regardless of the factors asserted, it is the burden of the party seeking leave to demonstrate the existence of factors entitling them to relief. See Kelley v. Newyork City Health & Hosps. Corp., 76 A.D.3d 824, 907 N.Y.S.2d 11 (15~ Dept. 2010) (Petitioner's failure to demonstrate the lack of any prejudice warranted denial of petition for leave to serve late notice of claim); Gitis v. City of New Yoriz, 68 A.D.3d 489, 490, 891 N.Y.S.2d 39, 39 (lst Dept. 2009) (Petitioner's failure to demonstrate reasonable excuse for delay, actual notice to respondents or lack of prejudice warranted denial of petition for leave to serve late notice of claim). 4844-0698-9627v.1 3 of 7 14. In the instant matter, petitioners make no attempt to revisit the issue of whether there was a reasonable excuse for the delay, but instead argue that MTA, NYCTA and/or the City had actual, timely knowledge of the underlying basis for the claim because MTACC purportedly came into possession of an accident report generated by petitioner Andres Rodriguez' employer. 15. As an initial matter, the mere possession of an accident report does not, in and of itself, establish that a respondent had actual knowledge of an incident. See Nacipucha v. City of New York, 18 Misc. 3d 846, 849 N.Y.S.2d 414 (Sup. Ct. 2008) (citing Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 814 N.Y.S.2d 580, 847 N.E.2d 1154 (2d Dept. 2006). 16. However, assuming arguendo that the report constitutes notice to MTACC, as petitioner argues, MTACC's knowledge is not imputed to any other respondents. 17. As Judge Stallman correctly noted, MTA, NYCTA, LIRR and the City are entities separate and apart from each other and, most importantly, MTACC. See Public Authorities Law §§ 1201; 1263; 1265-b(1) and 1266(5). 18. MTACC is, moreover, distinct from MTA and is individually subject to suit in its own right. See Public Authorities Law §§ 1265-b(1) and 1266(5). 19. It is further well settled that notice to one municipal entity cannot be imputed to another, legally distinct entity. See Seif v. City ofNew York, 218 A.D.2d 595, 593, 630 N.Y.S.2d 742, 744 (1995) (timely notice to NY City did not serve as notice to NYCHA); see also Ceely v. New York City Health & Hosps. Corp., 162 A.D.2d 492, 493, 556 N.Y.S.2d 694, 695-96 (2d Dept. 1990) (fact that City conducted General Municipal Law § 50—h and obtained medical authorizations and was represented by same attorney did not defeat NYCHHC's defense that plaintiff failed to properly serve a notice of claim). 4844-0698-9627v.1 4 of 7 20. Unsupported by any statute or case law that would contradict Judge Stallnrian's findings or the plain language of the statutes relied upon, petitioners nevertheless contend that MTACC acted as an agent of the MTA and that this purported relationship transfers notice to MTA. 21. This assertion is purportedly supported by selected language from a printout from MTACC's website. 22. Nevertheless, a review of the printout confirms only that MTACC is a separate agency which functions as a project manager for various "mega projects" for the MTA. 23. Petitioner provides no legal basis for why this Court should treat MTACC any differently than a privately retained project manager, especially as the separation between MTACC and MTA is statutorily defined. See Casale v. City of New York, 95 A.D.3d 744, 745, 945 N.Y.S.2d 92 (ls` Dept. 2012) (accident report given to general contractor and construction manager was insufficient to impute notice upon City for the purpose of filing a late notice of claim). 24. Thus, Judge Stallman was correct in determining that petitioner failed to demonstrate that MTA, NYCTA and City of NY had actual notice of the subject incident. 25. Petitioners claim that Judge Stallman failed to acknowledge a purported. lack of prejudice is similarly without merit. 26. It is well settled that Judge Stallman need not have addressed the issue of prejudice, as it was established that there was no actual notice to MTA, NYCTA or City of New York in the 90 days following the alleged accident. See Gonzalez v. City of New York, 127 A.D.3d 632, 634, 8 N.Y.S.3d 290, 292 (N.Y. App. Div. 2015) (finding no need to address issue of prejudice where there was no reasonable excuse or timely actual notice); Padilla, 90 A.D.3d 4844-0698-9627v.1 5 of 7 at 459 (holding that the question of whether actual notice was timely received is most important). 27. Further, petitioners bear the burden of establishing lack of prejudice. See Kelley, 76 A.D.3d 824; Gitis, 68 A.D.3d 489; see also Williams ex rel. Fowler v. Nassau Cry. Med. Ctr., 6 N.Y.3d 531, 539, n3, 847 N.E.2d 1154 (2006) (declining to find error where the Appellate Division "burdened [plaintiff] with the responsibility of showing lack of substantial prejudice"). 28. Here, rather than meet their burden, petitioners attempt to argue that there can be no prejudice to MTA by presuming that it had actual notice by way of the investigation report acquired by MTACC. 29. This argument must fail as the purported notice does not extend to MTA (or NYCTA or City of New York) for the reasons stated above. 30. Although petitioners cited Hosking v. City ofNew York, 139 A.D.3d 629, 630, 30 N.Y.S.3d 861 (1St Dept. 2016), that case is inappropriate because the decision was premised on the defendant City having actual notice. 31. Although the Court in Richardson v. New York City Hous. Auth., 136 A.D.3d 484, 24 N.Y.S.3d 308 (1StDept. 2016) determined that a late Notice of Claim could be filed despite a lack of actual notice, the decision was premised on the uncontested argument that the delay caused no prejudice as there were no witnesses to be interviewed and as the sidewalk condition which caused the incident was unchanged. 32. Here, however, unlike RichaNdson, there were, in fact, witnesses to interview. Furthermore, based upon the intervening years of construction, use and wear, respondents cannot now inspect the location or the machinery involved and expect them to be in the same condition they were at the time of the alleged accident. 33. Thus, Judge Stallman correctly denied petitioner's application for leave to file late 4844-0698-9627v.1 6 of 7 Notices of Claim. WHEREFORE, respondents request an Order denying plaintiff's motion pursuant to CPLR § 2221(d) seeking reargument of the August 10, 2016 Order of Hon. Michael D. Stallman denying the petition seeking leave to serve late notices of claim. Dated: New York, New York October 19, 2016 LANDMAN CORSI BALLAINE &FORD P.C. I~ ougherty, Esq. ttorneys fogy^ Defendants METROPOLITAN TRANSPORTATION AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY CAPITAL CONSTRUCTION COMPANY, NEW YORK CITY TRANSIT AUTHORITY. LONG ISLAND RAIL ROAD and CITY OF NEW YORK, 120 Broadway, 27th Floor New York, New York 10271-0079 (212) 238-4800 4844-0698-9627v.1 7 of 7