FILED: QUEENS COUNTY CLERK 11/15/2016 03:34 PM INDEX NO. 713208/2016 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/15/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Our File Number: 42012961 In the matter of the application of Universal North America Insurance Company and Universal North America Insurance Company as subrogee of Patrick Beglane for leave to file a Notice of Claim against the City of New York pursuant to General Municipal Law Section 50-e(5), NOTICE OF PETITION DATE PURCHASED & FILED: INDEX NO.:713208/2016 Petitioners, -against- The City of New York, Respondent. Returnable: 12/01/16, 2:15 p.m. Centralized Motion Part Courtroom 25 Queens County Supreme Court 88-11 Sutphin Boulevard Jamaica, New York 11435 TO THE ABOVE NAMED RESPONDENT PLEASE TAKE NOTICE, that upon the annexed petition of Petitioners Universal North America Insurance Company and Universal North America Insurance Company as th subrogee of Patrick Beglane, verified on the 30 day of September, 2016, an application st will be made on the 1 day of December, 2016 at 2:15 p.m., or as soon as counsel can be heard for an order granting Petitioners leave to file a Notice of Claim against the City of New York pursuant to General Municipal Law Section 50-e(5), and for such other and further relief as may be just, proper and equitable. 1 of 11
PLEASE TAKE FURTHER NOTICE, that a demand is hereby made for the service of an answer and supporting affidavits, if any, at least seven days before the aforesaid date of hearing, since this notice is served at least twelve days before such time. Dated: November 3, 2016 Law Offices of Jan Meyer & Associates, P.C. Noah Gradofsky, Esq. Attorney for Plaintiff(s) 1029 Teaneck Road, Second Floor Teaneck, New Jersey 07666 (201) 862-9500 Maintains a New York Office At: 424 Madison Avenue 16th Floor New York, NY 10017 Kindly correspond with our NJ office. TO: City of New York 1 Centre Street New York, New York 10007 2 of 11
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Our File Number: 42012961 In the matter of the application of Universal North America Insurance Company and Universal North America Insurance Company as subrogee of Patrick Beglane for leave to file a Notice of Claim against the City of New York pursuant to General Municipal Law Section 50-e(5), VERIFIED PETITION Petitioners, -against- City of New York, Respondent. Petitioners, by their attorney, Noah Gradofsky, as and for their Verified Petition for leave to file a Notice of Claim against the City of New York pursuant to General Municipal Law Section 50-e(5), submit the following: 1. This Verified Petition is made pursuant to General Municipal Law 50- e(5),for an for an order granting leave to serve a late Notice of Claim. The proposed notice is attached as EXHIBIT A. 2. The events at issue took place in QUEENS County, thus, this Court has jurisdiction to consider this Petition. See General Municipal Law 50-e(7) and C.PL.L.R. 505(a), 506(a). FACTUAL BACKGROUND 3. As per the attached, duly sworn, proposed Notice of Claim form, Claimant's 3 of 11
claim is for $127,260.72 worth of property damage, which was sustained on October 29, 2015, when Claimant's subrogor's house was damaged by a fallen tree. 4. Upon information and belief, based on information provided to us by our insured and preserved in the normal course of business, approximately two years prior to the loss, New York City marked the tree with a blue button indicating that it required removal. See as EXHIBIT B. However, before the tree was removed, it fell onto Claimant's insured's house, causing property damage. 5. Plaintiff's subrogor made phone calls to New York City Parks and Recreation at 212-NEW-YORK with regard to this tree on or about December 16, 2013 receiving confirmation number CL-1-813 and on or about January 18, 2014 receiving confirmation number CL-1-918828695. 6. Upon information and belief, said tree was marked with the blue button on or about January, 2014. 7. Unfortunately, due to claims handling processes, the matter was not referred to Petitioner s subrogation department until after the 90 day notice period had passed, and hence Petitioner was not aware of the notice requirement until after that time. 8. Nonetheless, Respondent New York City had actual knowledge of the essential facts constituting the claim from the date of loss, as demonstrated by the fact that, upon information and belief, it removed the fallen tree on or about October 29, 2015. 9. Those involved in removing said tree on the City s behalf would have seen the blue button that previously designated the tree for removal. 10. In fact, Petitioner s insured advised that a Parks and Recreations person at the scene told Petitioner s insured that he should sue the city for this claim. 4 of 11
ARGUMENT POINT I THE HEREIN PETITION IS TIMELY 11. N.Y Gen. Mun. Law 50-e(5) specifies that the time to serve a notice of claim may be extended to up to the time limited for the commencement of an action by the claimant against the public corporation. 12. Commencement of an action against Respondent, City of New York, is limited to within one year and ninety days after the happening of the event upon which the claim is based, N.Y Gen. Mun. Law 50-i(1). 13. Hence, a petition for leave to file late notice of claim against Respondent, City of New York is timely if filed within one year and ninety days of the date of loss. See further Shahid v. City of N.Y., 50 A.D.3d 770, 855 N.Y.S.2d 612, 613 (2d Dep t 2008) ( Petitioners were required to move for leave to serve a late notice of claim pursuant to N.Y Gen. Mun. Law 50-e(5) within one year and 90 days of the date that the claims accrued ). 14. The herein matter relates to a tree falling on Petitioner s insured s house on October 29, 2015. Hence, the herein petition is timely if filed by January 27, 2017. POINT II THE COURT HAS DISCRETION TO GRANT A TIMELY PETITION 15. The granting of a timely petition for leave to serve late notice is discretionary. Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 535, 814 N.Y.S.2d 580, 581 (N.Y. 2006) Hawes v Peru Cent. School Dist., 281 A.D.2d 794, 722 N.Y.S.2d 104 (3d Dep t 2001), Andersen by Andersen v. Brewster Cent. School Dist., 189 A.D. 2d 1068, 593 N.Y.S.2d 91 (3d Dep t 1993) ( As long as an application to serve a late Notice of Claim is made within the time limit proscribed by General Municipal Law 50-e(5),...the decision 5 of 11
whether to grant such an application is discretionary ).d POINT III THIS COURT SHOULD GRANT PETITIONER S APPLICATION TO FILE A LATE NOTICE OF CLAIM BECAUSE THE RESPONDENT IS NOT PREJUDICED BY THE LATE NOTICE 16. In determining whether to grant an extension, pursuant to N.Y. Gen. Mun. Law 50-e(5), "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 [90 days after the claim has arisen] or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the Petitioner was an infant...and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits." 17. The statute is "remedial in nature and should be liberally construed." Plaza ex rel. Rodriguez v. N.Y. Health & Hosps Corp. (Jacobi Med. Ctr.) 97 A.D.3d 466, 467, 949 N.Y.S.2d 25, 28 (1st Dep t 2012) aff d 21 N.Y. 3d 983, 993 N.E.2d 409 (2013), Porcaro v. City of New York, 20 A.D.3d 357, 358, N.Y.S.2d 450, 452 (1st Dep't 2005), Morgan v. New York City Housing Authority, 181 A.D.2d 890, 891 581 N.Y.S.2d 425, 426 (2d Dep't 1992). 18. The First Department observed in Porcaro, supra, 20 A.D.3d at 357-358 that: The intent underlying the notice of claim requirement, which is embodied in General Municipal Law 50-e, is to protect the municipality from unfounded claims and to ensure that it has an adequate opportunity "to explore the merits of the claim while information is still readily available" The statute, however, is not intended to operate as a device to frustrate the rights of individuals with legitimate claims. Citations omitted. 19. Similarly, the Second Department stated that the absence of an acceptable 6 of 11
excuse is not necessarily fatal. Rather, all relevant factors are to be considered, including the prejudice to the municipality and whether it obtained actual knowledge within the 90-day statutory period or shortly thereafter. Morgan, supra, 181 A.D. 2d at 890. See further Matter of St. Paul Guardian Ins. Corp. v. Pocatello Fire Dist., 90 A.D.3d 761, 762, 935 N.Y.S.2d 43, 45 (2d Dep't 2011)( Finally, the absence of a reasonable excuse for the delay does not bar the granting of the petition for leave to serve a late notice of claim where, as here, there is actual knowledge and an absence of prejudice. ) 20. Thus, the court has "discretion to consider all relevant factors and the presence or absence of any one factor is not necessarily determinative" to the issue of whether a motion of leave to serve a late Notice of Claim should be granted. Vicari v. Grand Ave. Middle Sch., 52 A.D.3d 838, 839, 860 N.Y.S.2d 629, 631 (2d Dep t 2008). 21. It is well settled that in determining whether to grant leave to serve a late Notice of Claim, the "most important [factor the court must consider], based on its placement in the statute and its relation to other relevant factors, is whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of the accrual of the claim or within a reasonable time thereafter" Lavender v Garden City Union Free Sch. Dist., 93 A.D.3d 670, 939 N.Y.S.2d 568, 569 (2d Dep t 2012) citing Matter of Felice v Eastport/South Manor Cent. School Dist., 50 A.D.2d 138, 147, 851 N.Y.S.2d 218 (2d Dep t 2008)). See also Leeds v. Port Washington Union Free Sch. Dist., 55 A.D.3d 734, 735, 865 N.Y.S.2d 349, 3550 (2d Dep't 2008) ("whether the public corporation acquired timely actual knowledge should be accorded great weight"). 22. As noted in the Factual Background section above, Respondent had actual knowledge of the facts constituting this claim from the date of loss. Respondent was on scene on the date of loss and had every opportunity to investigate the facts and 7 of 11
circumstances surrounding this claim. In addition, there is no reason to believe that its efforts in further investigation at this time would be thwarted by coming several months later than they might otherwise have come. 23. Where actual knowledge is demonstrated and there is no indication of prejudice, denying a petition for leave to file late notice is an improvident exercise of discretion subject to reversal. See Matter of St. Paul Guardian Ins. Corp. v. Pocatello Fire Dist., 90 A.D.3d 761, 935 N.Y.S.2d 45 (2d Dep't 2011). 24. In fact, proof that the defendant had actual knowledge is an important factor in determining whether the defendant is substantially prejudiced by the delay in filing a notice of claim. Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 539, 814 N.Y.S.2d 580, 584 (N.Y. 2006). CONCLUSION 25. As respondent had actual knowledge of the facts of the facts constituting this claim, see Factual Background, above, and cannot demonstrate substantial prejudice by the delay in filing a late notice fo claim, it is respectfully submitted that the Petitioner should be granted leave to file a Notice of Claim pursuant to N.Y. Gen. Mun. Law 50-3(5) and such other and further relief as this court deems just and proper. Dated: November 3, 2016 Law Offices of Jan Meyer & Associates, P.C. Noah Gradofsky, Esq. Attorney for Plaintiff(s) 1029 Teaneck Road, Second Floor Teaneck, New Jersey 07666 (201) 862-9500 Maintains a New York Office At: 424 Madison Avenue 16th Floor New York, NY 10017 Kindly correspond with our NJ office. 8 of 11
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Our File Number: 42012961 In the matter of the application of Universal North America Insurance Company and Universal North America Insurance Company as subrogee of Patrick Beglane for leave to file a Notice of Claim against the City of New York pursuant to General Municipal Law Section 50-e(5), VERIFICATION Petitioners, -against- City of New York, Respondent. STATE OF ) ) ss.: COUNTY OF ), being duly sworn, deposes and says: 1. I, am employed by Plaintiff Universal North America Insurance Company as a and as such I am fully familiar with the facts of the within litigation based on my personal knowledge and my review of records kept in the ordinary course of business. 2. I have read the foregoing Petition and know the contents thereof; said contents are true to my own knowledge, except as to matters alleged upon information and belief, and as to those matters, I believe them to be true. Dated: 9 of 11
State of ) County of )SS On the day of in the year 20xx, before me, the undersigned, personally appeared, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made such appearances before the undersigned in the State of, County of. Notary Public CERTIFICATE OF CONFORMITY OF ACKNOWLEDGMENT IN FOREIGN STATE State of ) County of )SS The undersigned,, does hereby certify that s/he is an attorney-at-law admitted to practice in the State of, with offices at [attorney s office address], in the City/Town of, County of, State of, and that the acknowledgment executed by [notary s name] on the day of in the year to the [document title] herein was taken in the manner prescribed by and in conformity with the laws of the State of, which is the place where the acknowledgment was taken. IN WITNESS THEREOF, I have hereunto set my hand this day of, in the year. Attorney of the State of 10 of 11
INDEX NO.: Our File Number: 42012961 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Universal North America Insurance Company and Universal North America Insurance Company as subrogee of Patrick Beglane, -against- The City of New York, Plaintiffs, Defendants VERIFIED PETITION FOR LEAVE TO FILE LATE CLAIM VERIFICATION LAW OFFICES OF JAN MEYER AND ASSOCIATES, P.C. 1029 TEANECK ROAD SECOND FLOOR TEANECK, NEW JERSEY 07666 (201) 862 9500 ATTORNEY FOR PLAINTIFF(S) MAINTAINS A NEW YORK OFFICE AT: 424 MADISON AVENUE 16TH FLOOR NEW YORK, NY 10017 KINDLY CORRESPOND WITH OUR NJ OFFICE. TO: City of New York 1 Centre Street New York, New York 10007 SERVICE OF A COPY OF THE WITHIN DATED: NEW YORK, NEW YORK. November 3, 2016 11 of 11