May 26, 2019

Employer's actual investigation of the incident on the date of the event reported to it by the injured party obviates its claim that it lacked timely notice of the event


Plaintiff, a medical technician employed by the New York City Health and Hospitals Corporation [HHC] filed motion seeking approval to file a "late notice of claim" alleging that she was assaulted by an inmate in the custody of Department of Correction [DOC] while that inmate was being treated at Bellevue Hospital. In support of her application, filed about seven months after the 90-day statutory period elapsed, Plaintiff submitted an affidavit averring that on the very same day of the alleged assault, she had two conversations with a DOC employee, a Corrections Captain [Captain], and told the Captain that she intend to pursue legal action." DOC did not submit any evidence to Supreme Court to dispute these factual allegations.

Supreme Court rejected Plaintiff's argument that the investigation provided respondent with actual notice, concluding only that her argument was "unavailing," presumably because agreed with DOC's argument that it lacked notice because Plaintiff never specified that she had told the Captain the manner in which DOC was negligent.

In considering whether to grant leave to file a late notice of claim, explained the Appellate Division, courts consider whether the public entity involved "acquired actual knowledge of the essential facts constituting the claim within [90 days] or within a reasonable time thereafter," and "all other relevant facts and circumstances," including "whether the delay in serving the notice of claim substantially prejudiced the public [entity] in maintaining its defense on the merits," the length of the delay, and whether there was a reasonable excuse for the delay.*

Although the Appellate Division held that while Supreme Court correctly found that Plaintiff failed to establish that DOC had actual knowledge of the essential facts constituting the claim based on the documentation that Plaintiff submitted to the Workers' Compensation Board, it erred in rejecting Plaintiff's argument that the investigation provided respondent with actual notice, concluding only that her argument was "unavailing."

To the extent that Plaintiff did not establish actual notice because she did not specify that her description of the assault included a recitation of who was in the room, the Appellate Division opined that "municipal authorities have an obligation to obtain the missing information if that can be done with a modicum of effort," citing Goodwin v New York City Hous. Auth., 42 AD3d 63. Here, said the court, negligence is the only theory of liability that could be implied by Plaintiff's conversations with Captain and, in any event, Captain could have determined who was in the room during the course of his investigation with "a modicum of effort." In the words of the Appellate Division, "[t]o hold otherwise would turn the statute into a sword, contrary to its remedial purpose."
The Appellate Division also found that Supreme Court erred by applying the incorrect legal standard when evaluating the issue of substantial prejudice. Supreme Court neglected to consider the decision of the Court of Appeals in Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455.

Applying the Newcomb standard, "as we must", the Appellate Division said it was compelled to find that DOC was not substantially prejudiced by the delay.**

Noting that the burden initially rests on the Plaintiff to make a showing that the late notice will not substantially prejudice the respondent and that showing "need not be extensive," the Appellate Division ruled that "Plaintiff easily met her initial burden of providing 'some evidence or plausible argument' regarding the lack of substantial prejudice by pointing to the investigation" by Captain. This shifted the burden of going forward to DOC, which failed to rebut Plaintiff's showing with the particularized evidence  as required by Newcomb nor provided Supreme Court with any evidence to substantiate that it was prejudiced by the mere passage of time.

The bottom line, the Appellate Division said it must bear in mind that "the purpose of the statute is to give the municipality the opportunity to investigate the claim" and here the record indicated that DOC's Captain  "actually investigated [Plaintiff's] claim on the very same day that it arose, thereby fulfilling the statute's purpose."***

* See General Municipal Law §50-e[5].

** The Appellate Division pointed out that Plaintiff failed to demonstrate a reasonable excuse for service of her late notice of claim but concluded that the "lack of excuse" is not fatal here.

*** The Appellate Division also noted that it had simultaneously recalled and vacated its Decision and Order previously entered [see 168 AD3d 481] regarding this matter.

The decision is posted on the Internet at:

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