Gorman v. City of N.Y., Index No.111181/05

• Court: United States State Supreme Court (New York)
• Writing for the Court: Hon. Rolando T. Acosta Supreme Court Justice
• Citation: 2005 NY Slip Op 30570 (U)
• Parties: Gerard Gorman, Petitioner, For leave to File a Late Notice of Claim v. City of New York, Respondent.
• Docket Number: Index No.111181/05
• Decision Date: 28 October 2005

2005 NY Slip Op 30570(U)

Gerard Gorman, Petitioner,
For leave to File a Late Notice of Claim
v.
City of New York, Respondent.

Index No.111181/05

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PART 61

FILED: November 9, 2005
October 28, 2005

DECISION/ORDER

Motion Seq. 1

Present: Hon. Rolando T. Acosta Supreme Court Justice

The following documents were considered in reviewing petitioner's application for an order granting leave to serve a late notice of claim, pursuant to Section 50-e of the General Municipal Law:

Papers	Numbered
Petition and Notice of Petition	1 (Exh. A-H)

In this special proceeding, petitioner Gerard Gorman seeks leave from the Court to serve a late notice of claim upon the City of New York, pursuant to Section 50-e of the General Municipal Law ("GML"). Petitioner claims to have suffered injuries arising from exposure to carcinogens and other toxic substances during the rescue, recovery, demolition, and/or construction efforts related to the World Trade Center site of the September 11, 2001 terrorist attacks. The injuries

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are alleged to be caused by breathing in air that was polluted with toxins and contaminants from the fires and dust, as a result of the City failing to provide proper respiratory masks and protective equipment. Petitioner contends that the injuries, including, but not limited to, fatigue, GERD, and RADS did not become apparent to him or his physicians until on or about October 20, 2004.

Section 50-e of the General Municipal Law ("GML") states that "In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action of an action or special proceeding..." the notice of claim shall be served "within ninety days after the claim arises." The purpose of serving a notice of claim "is to allow the municipal defendant to make a prompt investigation of the facts and preserve the relevant evidence." Lomax v. New York City Health and Hospitals Corp., 262 A.D.2d 2, 4 (1^st Dept. 1999). However, the Court, in its discretion, may grant an application for leave to serve a late notice of claim. GML §50-e(5). See also Isereau v. Brushton-Moira School District, 6 A.D.3d 1004 (3^rd Dept. 2004) ("...absent a clear abuse of discretion, Supreme Court's determination of an application for leave to serve a late notice of claim will not be disturbed.").

In determining whether to grant a late notice of claim, the Court must balance the municipal corporation's need for prompt notice of claims against it

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with the injured party's right to just compensation. Camarella v. East Irondequoit Central School Board, 34 N.Y.2d 139, 142-143 (1974). The Court's discretion in granting leave to file a late notice of claim is a remedial measure, and thus should be liberally construed. Santana v. City of New York, 183 A.D.2d 665 (1^st Dept. 1992).

It is well settled that in deciding whether or not to grant leave to file a late notice of claim, the Court should consider a number of relevant factors, including whether the excuse offered by the petitioner for the delay in filing the notice of claim is reasonable, whether the municipal had actual knowledge of the material facts constituting the claim within the 90-day as of right statutory time period, or shortly thereafter, and whether the municipality would be prejudiced if the petition to file the late notice of claim is granted. GML §50-e(5); See also Ali ex rel. Ali v. Bunny Realty Corp., 253 A.D.2d 356 (1^st Dept. 1998).

Petitioner has provided this Court with a reasonable excuse for his delay in filing a timely notice of claim, as well as showing that the City of New York had actual knowledge of the facts constituting his claim, and thus would not be prejudiced if petitioner is allowed to file a late notice of claim.

Petitioner reasonably relied on statements and assurances made to him on behalf of the...