Claimant Permitted to File Late Notice of Claim on One of Two Accidents
In Matter of Szymkowiak v New York Power Auth., 2018 NY Slip Op 04482 (4th Dept June 15, 2018), the claimant was employed as a laborer on a project in which the New York State Department of Transportation rehabilitated three bridges that ran over the respondent’s property. On September 26, 2015, the claimant fell off his employer’s flatbed trailer and injured his left arm and shoulder. On October 27, 2015, the claimant fell from a crane platform, sustaining a head injury and re-injuring his left shoulder. By an order to show cause dated November 17, 2016, the claimant moved for leave to serve a late notice of claim, which the trial court granted.
The respondent appealed, asserting that the claimant failed to meet his burden of demonstrating that the respondent had timely actual knowledge of the first accident, that the claimant had no justifiable excuse for filing a late notice of claim, and that the respondent would be prejudiced by the late filing.
The Fourth Department first agreed with the respondent that the claimant failed to establish a reasonable excuse for the delay, but noted that the failure to offer an excuse for the delay is not fatal where actual notice was had and there is no compelling showing of prejudice to the respondent.
The Court found that there was no compelling showing of prejudice to the respondent. As the plaintiff fell on a construction site, the Court held that even if the notice of claim had been timely filed, it was unlikely that conditions existing at the time of the accidents would still have existed at the time of filing.
Concerning actual notice, the Fourth Department stated that despite having engaged in pre-action discovery, the claimant was unable to provide any evidence that the incident report related to the first accident was ever transmitted to the respondent, and there was no mention of the first accident in the construction closeout report submitted to the respondent. Inasmuch as there was no evidence that the respondent received timely actual knowledge of the occurrence of the first accident, the respondent could not have received timely actual knowledge of the injuries or damages resulting therefrom, an essential part of the actual notice requirement.
The Court did find, however, that the respondent had received timely actual notice of the second accident. The claimant established that the incident report related to that accident was submitted to the respondent’s safety consultant, and the details and nature of the second accident were included in the construction closeout report.
Therefore, the claimant was permitted to file a late notice of claim as to the second accident only.
Prepared by Eric W. Marriott, Esq..