Creedon & Gill successfully defends town agianst a late NOC
Creedon & Gill, representing a local municiplaity, successfully opposed Plaintiff’s OTSC to file a late NOC in this matter. Plaintiff alleged he was seriously injured (2 knee surgeries, neck and back injuries) when a trench in which he was working suddenly collapsed. 1 year and 48 days post-accident and over 10 months after the 90-day limit for filing a Notice of Claim expired the Plaintiff brought an Order to Show Cause (OTSC) and Amended Petition to File a late Notice of Claim (NOC) against the Town. There are 3 main hurdles a plaintiff must overcome in order to file a late NOC. On our opposition, the judge found that plaintiff under these facts did not satisfy any of them and dismissed their case. It should be noted that while this OTSC was pending plaintiff went forward and filed their lawsuit against among others, the TOI. So, the active litigation underlying this accident will also be dismissed.
We opposed Plaintiff’s OTSC arguing three main points:
- TOI HAD NO ACTUAL KNOWLEDGE OF THE FACTS OF THE CLAIM WITHIN THE STATUTORY 90 DAY PERIOD OR A REASONABLE TIME THEREAFTER
The judge found that plaintiff was unable to satisfy this requirement. Felice v. Eastport/South Manor School District, 50 A.D.3d 138 (2nd Dept. 2008)
Petitioner sought to file a late NOC more than 7 months after the accident and 4 months after the expiration of the 90 days in which to serve a NOC. The Second Department, in reversing the lower court decision and rejecting the late NOC, found 1) there was no “actual knowledge” on the part of the municipality and 2) no “reasonable excuse” for delay.
The Felice court expounded on the “actual knowledge” requirement set forth in GML 50-e (5), reasoning that actual knowledge is the most important factor based on its placement in the statute and its relation to other relevant factors:
“We have consistently held that a public corporation’s knowledge of the accident and the injury, without more, does not constitute “actual knowledge of the essential facts constituting the claim” (General Municipal Law § 50–e; see Weber v. County of Suffolk, 208 A.D.2d 527, 528, 616 N.Y.S.2d 807), at least where the incident and the injury do not necessarily occur only as the result of fault for which it may be liable. In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves. Felice v. Eastport/South Manor School District, id at 148.”
- PETITONER OFFERS NO REASONABLE EXCUSE FOR THEIR DELAY IN TIMELY FILING THE NOC
The plaintiff delayed in “realizing the seriousness of his injuries”, which is an excuse that has not been supported by the courts, Werner v. Nyack UFSD. 76 A.D.3d 1026, (2d Dept., 2010), and which the court expressly rejected in its opinion.
- TOI’S ABILITY TO DEFEND THIS MATTER ON THE MERITS HAS BEEN SUBSTANTIALLY PREJUDICED BY THEIR DELAY IN TIMELY FILING THE NOC
We argued, with proof in the forms of affidavits from our investigator;
1) witnesses either cannot be located or their memory of specific details of the evening has faded,
2) physical evidence which could/should have been preserved is no longer available and
3) video footage of many of the details leading up to and including the accident has been overwritten and lost.