Perkins v. Albany Port Dist. Comm'n, 529995

• Decision Date: 24 December 2020
• Docket Number: 529995
• Citation: 139 N.Y.S.3d 376,189 A.D.3d 1929
• Parties: In the Matter of Montrell PERKINS, Appellant, v. ALBANY PORT DISTRICT COMMISSION, Also Known as Port of Albany, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1929

139 N.Y.S.3d 376

In the Matter of Montrell PERKINS, Appellant,

v.ALBANY PORT DISTRICT COMMISSION, Also Known as Port of Albany, et al., Respondents.

529995

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 17, 2020

Decided and Entered: December 24, 2020

Buckley, Mendleson, Criscione & Quinn, PC, Albany (John J. Criscione of counsel), for appellant.

Patrick K. Jordan, Albany Port District Commission, Albany (Michael J. Hutter of Powers & Santola, LLP, Albany, of counsel), for Albany Port District Commission, respondent.

Marisa Franchini, Corporation Counsel, Albany (Sarah A. Valis of counsel), for City of Albany, respondent.

Before: Egan Jr., J.P., Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from an order of the Supreme Court (Weinstein, J.), entered August 29, 2019 in Albany County, which denied petitioner's application pursuant to General Municipal Law § 50–e(5) to serve a late notice of claim.

In December 2018, petitioner, who was employed as a longshoreman by Federal Marine Terminal (hereinafter FMT), was working at the Port of Albany when he allegedly sustained a back injury after slipping on a patch of ice. In May 2019, petitioner brought this application seeking leave to serve a late notice of claim upon respondents pursuant to General Municipal Law § 50–e(5). Supreme Court denied petitioner's application, finding that petitioner failed to provide a reasonable excuse for the delay in filing the notice of claim, respondents did not have actual knowledge of the essential facts of the claim and the delay substantially prejudiced respondents. Petitioner appeals.

Petitioner contends that Supreme Court erred in denying his application to serve a late notice of claim. We agree, however only with respect to respondent Albany Port District Commission (hereinafter the Port). "Whether to permit the late filing of a notice of claim involves consideration of various statutory factors, including whether [the] respondents had actual notice 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] respondents incurred substantial prejudice as a result" ( Matter of Cornelius v. Board of Educ. of Delhi Cent. School Dist., 77 A.D.3d 1048, 1049, 911 N.Y.S.2d 481 [2010] [citations omitted]; see General Municipal Law § 50–e[5] ; accord Matter of Waliszewski v. County of Ulster, 169 A.D.3d 1212, 1213, 93 N.Y.S.3d 740 [2019] ). Initially, we agree with Supreme Court that there was no reasonable excuse for the delay because petitioner's proffered excuse of ignorance of the filing requirement is not, as a matter of law, a reasonable excuse (see Matter of Schwindt v. County of Essex, 60 A.D.3d 1248, 1249, 876 N.Y.S.2d 191 [2009] ; Matter of Crocco v. Town of New Scotland, 307 A.D.2d 516, 517, 762 N.Y.S.2d 685 [2003] ).¹ However, "the failure to offer a reasonable excuse for the delay in filing a notice of claim is not fatal where actual knowledge was had and there is no compelling showing of prejudice" ( Daprile v. Town of Copake, 155 A.D.3d 1405, 1407, 65 N.Y.S.3d 351 [2017] [internal quotation marks, brackets, and citations omitted]; see Matter of Apgar v. Waverly Cent. School Dist., 36 A.D.3d 1113, 1115, 828 N.Y.S.2d 652 [2007] ).

Turning first to the Port, Supreme Court erroneously determined that the Port did not have actual notice of the essential facts constituting the claim. Affidavits offered by petitioner and James Keleher, an employee of FMT, establish that members of the Port Security Department came to the scene of the accident soon after petitioner's fall to check on his condition and were able to observe the area where petitioner fell. Petitioner also averred that the Port Security Department was located approximately one hundred feet from where he fell and that there are surveillance cameras on the Port Security Department office building that are pointed at the area where petitioner fell. Petitioner also proffered an incident report form completed by one of the members of the Port Security Department who came to the scene the day of the accident. This form reflects the location of petitioner's fall and that petitioner fell on ice, injured his back and was transported to the hospital by an ambulance. Thus, the Port had "more than merely generalized awareness of an accident and injuries" sufficient to establish actual notice ( Matter of Franco v. Town of Cairo, 87 A.D.3d 799, 800–801, 928 N.Y.S.2d 396 [2011] ; see Matter of Schwindt v. County of Essex, 60 A.D.3d at 1250, 876 N.Y.S.2d 191 ; Matter of Welch v. Bd. of Educ. of Saratoga Cent. School Dist., 287 A.D.2d 761, 763–764, 731 N.Y.S.2d 94 [2001] ).

We turn now to the issue of prejudice as to the Port. We agree with petitioner that Supreme Court did not apply the correct legal standard, as it " ‘plac[ed] the burden solely on [petitioner] to establish lack of substantial prejudice and ... fail[ed] to consider whether [petitioner's] initial showing shifted the burden to [respondents]’ " ( Sherb v. Monticello Cent. Sch. Dist., 163 A.D.3d 1130, 1133, 81 N.Y.S.3d 265 [2018], quoting Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 467, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016] ). Rather, the proper standard requires a petitioner to initially "present some evidence or plausible argument that supports a finding of no substantial prejudice" ( Sherb v. Monticello Cent. Sch. Dist., 163 A.D.3d at 1133, 81 N.Y.S.3d 265 [internal quotation marks and citations omitted]; see Matter of Kranick v. Niskayuna Cent. Sch. Dist., 151 A.D.3d 1262, 1263, 56 N.Y.S.3d 636 [2017] ). Here, petitioner met this burden by showing, as previously discussed, that the Port had actual notice of the incident sufficient to allow it to investigate the accident shortly after it occurred (see Sherb v. Monticello Cent. Sch. Dist., 163 A.D.3d at 1133, 81 N.Y.S.3d 265 ). Additionally, petitioner submitted photographs and a video that suggest that the condition has not substantially changed from its appearance at the time of the accident.

Thus, the burden shifted to the Port "to rebut [the] showing with particularized evidence" ( Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 467, 45 N.Y.S.3d 895, 68 N.E.3d 714 ). In this regard, the Port asserted that it was prejudiced because the conditions have changed at the location where petitioner fell. However, the transitory nature of the icy pavement, standing alone, does not demonstrate substantial prejudice (see e.g. Matter of Waliszewski v. County of Ulster, 169 A.D.3d at 1214, 93 N.Y.S.3d 740 ; Matter of Hayes v. Delaware–Chenango–Madison–Otsego Bd. of Coop. Educ. Servs., 79 A.D.3d 1405, 1406, 912 N.Y.S.2d 781 [2010] ), especially given that, even had the notice of claim been filed timely, the accident site would not have remained completely unaltered due to weather changes within the 90–day statutory period. As such,...