Concepcion v. Vill. of Johnson City

• Docket Number: Index No. EFCA2022002094
• Decision Date: 01 April 2023
• Parties: RAFAEL CONCEPCION, Plaintiff, v. VILLAGE OF JOHNSON CITY, JOHNSON CITY CENTRAL SCHOOL DISTRICT and JOSEPH ROMA, Defendants.
• Court: New York Supreme Court

1

2023 NY Slip Op 31898(U)

RAFAEL CONCEPCION, Plaintiff, v. VILLAGE OF JOHNSON CITY, JOHNSON CITY CENTRAL SCHOOL DISTRICT and JOSEPH ROMA, Defendants.

Index No. EFCA2022002094

Supreme Court, Broome County

April 1, 2023

Unpublished Opinion

Counsel for Plaintiff:

Goldstein & Goldstein, LLP

BY PAUL GOLDSTEIN, ESQ.

Counsel for Defendants:

Johnson City Central School District

Joseph Roma

Boyle Shaughnessy Law, P.C.

BY: WALTER J. KLIMCZAK, ESQ.

DECISION AND ORDER

EUGENE D. FAUGHNAN, JUDGE

There are two motions to be determined by the Court at this time. Plaintiff Rafael Concepcion ("Concepcion") filed a motion seeking permission to serve a late Notice of Claim. Thereafter, Defendants Johnson City Central School District ("Johnson City CSD") and Joseph Roma ("Roma") filed a cross-motion, pursuant to CPLR § 3211 (a)(7) and General Municipal Law § 50-e, to dismiss the Complaint.^[1] Oral argument was conducted by Microsoft Teams on April 19,2023 and the attorneys for all parties were present. After due deliberation, this constitutes the Court's Decision and Order.^[2]

BACKGROUND FACTS

On February 7, 2022, Concepcion was involved in a motor vehicle accident on Reynolds Road in Johnson City. Plaintiff claims that he was stopped behind a vehicle which was waiting to make a left-hand turn, and he was struck from behind by a Johnson City CSD school bus operated by Roma. The driver of the turning vehicle is not a party to this action. Concepcion was taken from the scene by an ambulance, and his car was towed due to the damage. The bus also sustained front end damage.

Plaintiff filed a Summons and Complaint on October 31,2022. Defendants filed a Verified Answer with Affirmative Defenses and a Cross-Claim on January 9, 2023, which they amended on January 13,2023. One of the affirmative defenses is based on Plaintiffs alleged failure to serve a timely Notice of Claim on Johnson City CSD.

Plaintiff brought this motion to allow him to serve a Notice of Claim nunc pro tunc. Plaintiff included a proposed Notice of Claim and argued that the school district had "actual knowledge" of this accident and would not be substantially prejudiced by the granting of this motion. Plaintiff also proffered an excuse for the failure to serve the Notice of Claim, essentially claiming mistake as to the proper entity to be served. Plaintiff included a copy of the police accident report with his motion. Defendants opposed Plaintiffs motion, and filed their own cross-motion to dismiss the Plaintiffs Complaint due to Plaintiffs failure to serve a timely Notice of Claim as required under Gen. Mun. Law § 50-e. Defendants argue that timely filing of a Notice of Claim is a condition precedent to commencing an action, and Plaintiff's failure to prove compliance with this condition precedent supports dismissal for failure to state a cause of action under CPLR 3211(a)(7). In opposition to Defendants' motion to dismiss, Plaintiff filed an attorney affirmation with Exhibits, and an affidavit from the person who served the Notice of Claim, with an Exhibit. Defendants then filed their own reply affirmation.

LEGAL DISCUSSION AND ANALYSIS

Gen Mun. Law § 50-e establishes a "protocol for serving a notice of claim as a condition precedent to a suit against a public corporation." Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 535 (2006). The purpose of requiring Notice of Claim is "[t]o enable authorities to investigate, collect evidence and evaluate the merit of a claim." Brown v. City of New York, 95 N.Y.2d 389, 392 (2000); New York State Elec. & Gas Corp. v. County of Chemung, 137 A.D.3d 1550 (3^rd Dept. 2016), app dismissed 28 N.Y.3d 1044 (2016); see, Matter of Felice v. Eastport/South Manor Cent. Sch. Dist., 50 A.D.3d 138, 147 (2^nd Dept. 2008). As relevant here, pursuant to Gen. Mun. Law § 50-e (1), Notice of Claim must be provided to a public corporation within ninety days after the claim arises. Wally G. v. New York City Health &Hosps. Corp. (Metro. Hosp.), 27 N.Y.3d 672 (2016); Williams v. Nassau County Med. Ctr., 6 N.Y.3d at 535; Gen. Mun. Law § 50-e (1)(a). A "public corporation" includes a "municipal corporation" [Gen. Const. Law § 66(1)], and a school district comes within the definition of a "municipal corporation." Gen Cons. Law § 66(2); see, Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455,460 n.2 (2016); Roslyn Union Free Sch. Dist. v. Barkan, 16 N.Y.3d 643 (2011); see also Gen. Mun. Law § 800(4); Gen. Const. Law § 65 (b). Thus, the requirements of Gen. Mun. Law § 50-e are applicable to this claim against Johnson City CSD.

If timely Notice of Claim is not given, the Petitioner/Plaintiff can still seek a court order authorizing late notice. Gen. Mun. Law § 50-e (5) permits a court, in its discretion, to extend the time to serve a Notice of Claim, or deem a late Notice of Claim timely served, nunc pro tunc. Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 460-461; see, Matter of Holbrook v. Village of Hoosick Falls, 168 A.D.3d 1263 (3^rd Dept. 2019); Matter of Kranick v. Niskayuna Cent. Sch. Dist., 151 A.D.3d 1262 (3^rd Dept. 2017); see also, Matter of Reddick v. New York City Hous. Auth., 188 A.D.3d 890 (2^nd Dept. 2020). In deciding whether to grant an application to serve a late Notice of Claim, the court "is statutorily required to consider a nonexhaustive list of factors, including whether the respondent had actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter, whether the petitioner offered a reasonable excuse for the delay in filing and whether the respondent incurred substantial prejudice as a result." Matter of Holbrook v. Village of Hoosick Falls, 168 A.D.3d at 1264 [internal brackets omitted], quoting Daprile v. Town of Copake, 155 A.D.3d 1405,1406 (3^rdDept. 2017); see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 461; Matter of Cornelius v. Board of Educ. of Delhi Cent. Sch. Dist., 77 A.D.3d 1048,1049 (3^rd Dept. 2010); Mindy O. v. Binghamton City Sch. Dist., 83 A.D.3d 1335,1336-1337 (3^rd Dept. 2011). "No single factor is dispositive and, absent a clear abuse of discretion, Supreme Court's determination in this regard will not be disturbed." Matter of Waliszewski v. Ulster, 169 A.D.3d 1212, 1213 (3 ^rd Dept. 2019) quoting Matter of Cornelius v. Bd. of Educ. of Delhi Cent. Sch. Dist., 77 A.D.3d at 1049; Mariani v. Wilson Cent. Sch. Dist., 192 A.D.3d 1579,1580 (4^th Dept. 2021); Matter of Reinemann v. Village of Altamont, 112 A.D.3d 1264,1265 (3^rd Dept. 2013). Courts have also recognized that actual knowledge is a factor that should be given significant weight. Matter of Christopher M. v. Bouquet Val. Cent. Sch. Dist., 200 A.D.3d 1176 (3 ^rd Dept. 2021); Matter of Holbrook v. Village of Hoosick Falls, 168 A.D.3d at 1264; Matter of Lugo v. GNP Brokerage, 185 A.D.3d 824, 825 (2^nd Dept. 2020); Matter of Felice v. Eastport/South Manor Cent. Sch. Dist., 50 A.D.3d at 147. Given the importance of actual knowledge in the equation, the Court will start with discussion of that factor.

1. Actual Knowledge

Initially, the Court notes that the statute specifically provides that "actual knowledge" can be met by virtue of information obtained by the insurance carrier. Gen. Mun. Law § 50-e (5); see Matter of Felice v. Eastport/South Manor Cent. Sch. Dist., 50 A.D.3d 138; McAdams v. Police Dep't of Clarkstown, 184 A.D.2d 847 (3^rd Dept. 1992); see also Shapiro v. County of Nassau, 5 A.D.3d 690, 690 (2^nd Dept. 2004) ("It does not avail the County to argue that it received no such notice when it makes no effort to dispute that its insurer received such notice."); Gilbert v. Eden Cent. Sch. Dist., 306 A.D.2d 925 (4^th Dept. 2003). In the present case, Plaintiffs claim of "actual knowledge" applies to both the school district and its insurance carrier.

The phrase "actual knowledge of the essential facts constituting the claim" has generated considerable litigation and discussion about the circumstances in which that requirement is met. The caselaw has established that a municipality's knowledge of the incident/accident itself is not enough. See, Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531; Matter of Felice v. Eastport/South Manor Cent. Sch. Dist., 50 A.D.3d 138; Matter of McFarland v. City of New York, 169 A.D.3d 687 (2^nd Dept. 2019). Thus, for example, mere possession of medical records, an accident report, or a police report, without more, does not establish actual knowledge. The evidence must include details providing some reasonable inference of fault ascribable to the municipality [See, e.g. Matter of Christopher M. v. Bouquet Vai. Cent. Sch. Dist., 200 A.D.3d 1176; Sherb v. Monticello Cent. Sch. Dist., 163 A.D.3d 1130 (3^rd Dept. 2018); Matter of Reinemann v. Village of Altamont, 112 A.D.3d 1264; Matter of Petersen v. Susquehanna Vai. Cent. Sch. Dist., 57 A.D.3d 1332 (3^rd Dept. 2008)] as well as information concerning injuries resulting therefrom. Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531; Spaulding v. Cobleskill-Richmondville Cent. Sch. Dist., 289 A.D.2d 860 (3^rd Dept. 2001); see, Matter of Jackson v. Newburgh Enlarged City Sch. Dist., 85 A.D.3d 1031 (2^nd Dept. 2011); Santana v. W. Reg'l Off-Track Betting Corp., 2 A.D.3d 1304 (4^th Dept. 2003). Here, the evidence is sufficient to show both the municipality's potential fault and that Plaintiff sustained injury.

First the record(s) must provide some facts to suggest that the municipality might be responsible for the accident or otherwise liable. See, Kirtley v. Albany County Airport Auth.,61 A.D.3d 1317 (3^rd Dept. 2009); see also, Wally G. v. New York City Health &Hosps. Corp., 27 N.Y.3d 672, 677 ("medical records must 'evince that the medical staff, by its acts or...