Petitioner, an attorney at law duly licensed to practice. before the Courts of the State of New York affirms the following

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X In the Matter of the Application of GEORGE GARCZYNSKI, -against- THE CITY OF NEW YORK Petitioner, Respondent X Index No. PETITION I I! I I,I JOHN F. NASH, an attorney at law duly licensed to practice before the Courts of the State of New York affirms the following under penalties of perjury: 1. I am a member of the firm of SULLIVAN PAPAIN BLOCK MCGRATH & CANNAVO P. C., attorneys for the Petitioner, GEORGE GARCZYNSKI, herein, and as such I am fully familiar with the facts and circumstances set forth herein based upon the file maintained in my office. 2. This Affirmation is respectfully submitted in support of Petitioner's application seeking the following relief: a) An Order pursuant to General Municipal Law Section 50-e(5) permitting Petitioner leave to serve a late Notice of Claim upon Respondent, THE CITY OF NEW YORK in the form annexed hereto as EXHIBIT "1"; and deeming said Notice of Claim served nunc pro tunc, on Respondent, together with such other and further relief this Court deems just and proper. 4 1 of 14

2 3. The instant application should be granted for the following reasons: a) This application is being brought within one year and ninety days, the time limited for the commencement of an action by Petitioner against Respondent for injuries sustained on August 19, 2016 due to Respondent's negligence. b) Upon information and belief, Respondent acquired actual notice of the actual facts constituting the claim within the ninety days immediately following the incident of August 19, 2016 as will be demonstrated below. At the time of his incident, Petitioner, a sworn New York City Police Officer suffered his incident while in the course of his employment while exiting a defective Police Mobile Command Post when an automatic step failed to deploy; the incident was witnessed by fellow Police Officers and official 'Line of Duty' reports of the incident were made recording the incident and its cause and reported up the chain of command immediately after the incident as demonstrated within. Also, upon information and belief, the Mobile Command Post in its accident condition was and is in possession of Respondent's Police Department. c) During the first 90 days following his incident, Petitioner was involved with his medical care and recovery which incapacitated him and kept him from attending to his legal rights and the filing of a timely Notice of Claim. (please see Exhibit "2"). d) There can be no claim of prejudice by Respondent concerning its ability to maintain a defense on the merits of this claim should this application be granted based upon the nature of the claim. The claim was witnessed by members of the New York City Police Department, the incident was reported up the chain of command in official "on the job" police reports from fellow Police Officers and two Police Sergeants on the day of and on the day after the incident. (See Exhibits "4" and "5") Petitioner's claim involves injuries sustained in the course of his employment as a police officer. 5 2 of 14

3 e) Petitioner has a meritorious claim as supported by his Affidavit sworn to on March 2, 2017 (Exhibit "2") EXHIBIT LIST Exhibit 1 Proposed Notice of Claim Exhibit 2 Affidavit of George Garczynski Exhibit 3 Line of Duty Control Log Exhibit 4 Aided Report Work Sheet Exhibit 5 Witness Statement - Injury to Member of Department - Sergeant Viscomb Exhibit 6 witness Statement - Injury to Member of Department - P. o. Chin Exhibit 7 Statement of Illness/Injury Line Of Duty dated 8/22/16 Exhibit 8 Certification of Line of Duty Injury FACTS 4. On Tuesday, August 19, 2016 at approximately 10:00 p.m., Petitioner, GEORGE GARCZYNSKI was in the course of his employment as a New York City Police Officer when he was 6 3 of 14

4 seriously injured 1 At the time of his incident Officer GARCZYNSKI was exiting Mobile Command Post number Said Command Post was located on the corner of Madison Avenue and East 23 rd Street. As Petitioner exited the Command Post an automated step/step stool failed to deploy and provide Petitioner a step-down to the street from the Command Post. Officer Garczynski was caused to fall when he stepped out of the Command Post. In the course of falling Petitioner's foot came in contact with a curb and caused him to slip and twist his ankle. City EMS was called and Officer Garczynski was transported from the scene to NYU Medical Center. 5. Official 'Line of Duty' reports and witness statements pertaining to Petitioner's incident were filled out by Petitioner's New York City Police Department seniors-in-command and fellow officers. Included herewith is a three-page Line of Duty control log, Exhibit "3"; an 'Aided Report Work Sheet' signed by Sgt. Horlick, Tax Registry No: , Exhibit "4"; Witness Statements - "Injury to Member of the Department", by Sgt. F. Vescimone dated August 19, 2106, Exhibit "5" and a witness statement by P.O. Ricardo Chi, Shield 5058, Exhibit "6". In addition, petitioner filled out a "Statement of Illness/Injury Line of Duty" on August 22, 2016, Exhibit "7", ipetitioner is a sworn officer with Shield No: At the time of his incident Petitioner was assigned to PBMS SOU Command. His Tax Registry Number is of 14

5 the first day Petitioner reported "sick" to Respondent. Also, Respondent filed a "Certification of Line of Duty Injury/Authorization for Treatment" form for the injuries sustained by Petitioner, Exhibit "8". 6. Upon information and belief, Respondent owned the Mobile Command Post at issue and had a non-delegable duty under the common law to maintain its property in a reasonably safe condition. Further, upon information and belief Respondent maintains possession of the Command Post at issue. Petitioner contends Respondent's property was not in proper condition at the time of Petitioner's incident and contends that Respondent was responsible to Petitioner under General Municipal Law Section 205(e), Labor Law Section 27-a, as well as the common law. 7. Concerning Petitioner's medical treatment, City EMS Ambulance took him from the scene to NYU Hospital where he was examined, x-rayed, given pain medication, crutches and an air cast for his left ankle. his private physician. He was then released to the care of Thereafter, he treated with Joseph Alencherry, M.D., of New Hyde Park. Over a two month period Dr. Alencherry administered cortisone injections and prescribed physical therapy. Physical therapy was done at Bright Bay Physical Therapy in Brightwaters, Long Island. After Dr. Alencherry suggested surgery, Petitioner obtained a second 8 5 of 14

6 opinion from Steven Sheskier, M.D., of 95 University Place, New York, New York. Dr. Sheskier prescribed a cortisone injection and additional physical therapy, which was unsuccessful. Surgery was then recommended and performed at Hospital for Joint Disease on January 12, Petitioner has been unable to return to full duty with the New York City Police Department as of the date of this application. Exhibit "2". 8. Your affirmant's firm was not retained until January 26, 2017, clearly outside the General Municipal Law Section 50-e requirement for filing a Notice of Claim within ninety days of the date of the incident, but also clearly within the General Municipal Law Section 50-e(5) "year and ninety day" period that permits this Court, in its discretion, to grant the filing of a late Notice of claim. 9. Your affirmant respectfully submits that Petitioner has a meritorious claim in that Respondents' Mobile Command Post was in a defective condition at the time of Petitioner's incident. Similarly, your affirmant respectfully submits that Petitioner has a justifiable reason for the delay in retaining counsel and requesting permission to serve a late Notice of Claim, to wit: that he was seriously injured and physically unable to attend to legal wellbeing due to his incapacity and inability to ambulate in a safe manner up to and following the surgery. 9 6 of 14

7 THE LAW GOVERNING A LATE NOTICE OF CLAIM 10. General Municipal Law Section 50-e (5) provides that the Court has discretionary power to extend the time within which service of a Notice of Claim must be completed, but cannot extend said time past the time limited for the commencement of an action against the public corporation, here a year and ninety days from August 19, General Municipal Law 50-e (5) reads as follows: 5. Application for leave to serve a late notice. Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one of this section. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one of this section or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; if service of the notice of claim is attempted by electronic means pursuant to paragraph (e) of subdivision three of this section, whether the delay in serving the notice of claim was based upon the failure of the computer system of the city or the claimant or the attorney representing the claimant; that such claimant or attorney, as the case may be, submitted evidence or proof as is reasonable 10 7 of 14

8 (emphasis added). showing that (i) the submission of the claim was attempted to be electronically made in a timely manner and would have been completed but for the failure of the computer system utilized by the sender or recipient, and (ii) that upon becoming aware of both the failure of such system and the failure of the city to receive such submission, the claimant or attorney had insufficient time to make such claim within the permitted time period in a manner as otherwise prescribed by law; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits. An application for leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action against the public corporation. " 12. As stated in Velazquez v. City of New York Health and I~ I I i Ii I I :I 1 1 ~ I I Ii I11 HoSpS. Corp., 69 A.D.3d 441 (1st Dep't 2010), the "key factors" in determining whether leave to serve a late Notice of Claim should be granted are: Whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame, whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense. I ~ I i ''1 i I i I 13. Whether to grant an application for leave to serve a late notice of claim rests within the sound discretion of the court upon consideration of the aforecited factors. Semyonova v of 14

9 New York, City Housing Authority, 15 A.D.3d 181, 182, 789 N. Y. S. 2d 38 ( 1 st D ep t., 2005). one factor is not determinative. The presence or absence of any Perez v. New York City Health & Hospitals Corp., 81 A.D.3d 448, 915 N.Y.S.2d 562, 564 (1st Dept., 2011) ; Dubowy v. City of New York, 305 A.D.2d 320, 321, 759 N.Y.S.2d 325 (1 st Dept., 2003); Semyonova, Id at p The statute is not intended to operate as a device to defeat the rights of persons with legitimate claims. It is remedial in nature and should therefore be liberally construed. Dubowy v. City of New York, Id at p. 321; Perez, Id. at p Most recently, in Newcomb v. Middle Country Central School District, 28 N.Y.3d 455 (2016), the Court of Appeals placed the initial burden upon the Petitioner when seeking permission to file a late Notice of Claim. Petitioner must come forward in its application and demonstrate that the late Notice of Claim would not substantially prejudice the public corporation, here, the City of New York in defending petitioner's claim. Once "lack of prejudice" is demonstrated, the public corporation is then required to rebut the showing of lack of prejudice with particularized evidence establishing "prejudice" in order to defeat Petitioner's application. In the instant matter it is respectfully submitted that Petitioner has 12 9 of 14

10 come forward in the first instance demonstrating lack of prejudice to Respondent with respect to petitioner's application to file a late Notice of Claim. Given the timely report of the incident by Petitioner's senior officers on the day of the incident, or shortly thereafter, Exhibits "3" -"6", Respondent will not be prejudiced in defending this claim on its merits. And, upon information and belief, the Command Post is in Respondent's possession. REASONABLE EXCUSE FOR DELAY 16. Petitioners respectfully submits that his delay in filing his Notice of Claim was occasioned by his incapacity from his injuries arising from the subject incident and the treatment and surgery following the incident, Exhibit "2". While arguably Petitioner could have telephoned an attorney concerning his legal rights flowing from his incident at bar, no prejudice has resulted to Respondent from this omission. As mentioned above, even the absence of a reasonable excuse does not require the denial of a motion to file a late Notice of Claim, especially when the facts at bar demonstrate that Respondent had actual written notice of the incident immediately following the incident. Further, case law supports Petitioner's position at bar. 17. In Hayes v.delaware-chenagngo-madison-otsego Bd. Of Co-op. Educational, 79 A.D.3d 1405 (3d Dep't, 2010), the of 14

11 Appellate court affirmed the trial court's decision to grant petitioner's application to serve a late notice of claim where the petitioner underwent "hospitalization, surgery and physical therapy as a result of the accident, and remains disabled." Similarly, in Olsen v. County of Nassau, 14 A.D.3d 706 (2d Dep't, 2005), the court found that the petitioner had a reasonable excuse for failing to file a timely Notice of Claim since the petitioner was diagnosed with cancer, hospitalized numerous times, underwent surgery and chemotherapy treatments and was wheelchair bound. At bar, it is respectfully submitted that Petitioner's excuse is reasonable due to the disability he suffered immediately flowing from his injury, one that continues through the present day. ACTUAL NOTICE 18. Proof that respondent received actual notice of the essential facts of the claim within ninety days of its accrual on August 19, 2016 is demonstrated by the Line of Duty reports, witness reports, and medical reports, filed with the New York City Police Department by New York City Police Officers with personal knowledge of Petitioner's incident, Exhibits "3" - "8". ABSENCE OF PREJUDICE 19. In the first instance it is respectfully submitted that petitioner has satisfied the initial burden demonstrating that the service of a late Notice of Claim will not prejudice of 14

12 Respondent herein. The instrument of injury was Respondent's own defective Mobile Field Command Post. The incident was witnessed by members of the New York City Police Department who submitted written reports of the incident on the day of the incident and on the day following the incident, Exhibits "3" "6". Said reports went up Respondent's chain of command upon information and belief. 20. It is respectfully submitted that Respondent cannot demonstrate any prejudice that would prevent Respondent from defending Petitioner's claim on its merits should Petitioner be permitted to file a late Notice of Claim. CONCLUSION 21. Given the factors involved with the instant claim, the fact that the cause of Petitioner's injuries was due to defective equipment belonging to Respondent, and given the fact that witness reports from Respondent's own employees identify the defective equipment and the mechanism of the incident, it is respectfully submitted that Petitioner's application to file a late Notice of Claim in the form annexed herein should be granted. 22. No prior application for the instant relief has been made to this or any other Court of 14

13 WHEREFORE, it is respectfully requested that Petitioner's application be granted in its entirety and that an Order be issued: a) permitting Petitioner to file a late Notice of Claim in the form annexed as Exhibit "1", and deeming the same to be filed nunc pro tunc; b) for such other, further and different relief as to this Court is just and proper. Dated: Garden City, New York March 17, of 14

14 , STATE OF NEW YORK) COUNTY OF NASSAU ) ) SS. : ;1! I am the Petitioner herein; I have read the foregoing I JOHN F. NASH, being duly sworn, deposes and says: Petition and know the contents thereof, that same is true to my own knowledge except as to matters stated to be alleged upon information and belief, and to those matters I believe them to be true. I I Ii STATE OF NEW YORK) ) SS. : COUNTY OF NASSAU ) F. NASH I On this ~day of March, 2016, before me personally came, JOHN F. NASH, to me known and known to me to be the person described in and who executed the, foregoing instrument and who duly acknowledged to me that he exec}1tjtq' the same. i? /?i /,:/ /,' / i/' ~ /,y ( ((;C("i//i NOTARY PUBLIC j /,"" ALLISON PALMER Notary Public, State of New York No Qualified in Suffolk County.., Commission Expires April 30, 201 \.~ of 14