Preview
FILED: WESTCHESTER COUNTY CLERK 05/14/2024 01:39 PM INDEX NO. 62527/2024
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/14/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
--------------------------------------------------------------------X
In the matter of the Application of
FULBIO LABASTIDA-RAMIREZ,
AFFIRMATION IN
SUPPORT
Petitioner,
Index No.:
-against-
THE CITY OF NEW ROCHELLE and NEW
ROCHELLE INDUSTRIAL DEVELOPMENT
AGENCY,
Respondents.
--------------------------------------------------------------------X
ANTHONY M. DELISO, an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms to the truth of the following, under
penalties of perjury:
1. That I am a Partner with the law firm of Liakas Law, P.C., attorneys for the
petitioner herein and as such, I am fully familiar with the facts and circumstances
surrounding the within matter, the source of my knowledge being the file maintained by
this office.
2. I submit this affirmation in support to the instant application seeking an
Order granting the Petitioner leave to serve and file a Late Notice of Claim against
Respondents THE CITY OF NEW ROCHELLE and NEW ROCHELLE INDUSTRIAL
DEVELOPMENT AGENCY. This application is timely as it has been made within one
year and ninety days of Petitioner’s accident. See, Hayes v. City of New York, 100 AD2d
572 (2d Dept. 1984).
3. The following Exhibit are annexed hereto in support of Petitioner’s
application:
Exhibit “A” – Summons and Verified Complaint;
Exhibit “B” – Answer;
Exhibit “C” – Notice to Admit;
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Exhibit “D” – Response to Notice to Admit;
Exhibit “E” – Jobsite Placard;
Exhibit “F” - Proposed Late Notice of Claim.
FACTS
4. This is a claim to recover damages for serious injuries sustained as a result
of an accident which occurred on March 1, 2023, at approximately 7:30AM, at a new
construction project located at 116 Guion Place, New Rochelle, New York. The premises
is owned by the Respondents.
5. On the date of the accident, Petitioner was employed by HSA Contracting
as a Laborer. See Petition. The accident occurred while Petitioner was descending an
exterior makeshift ramp at the project. Id. While Petitioner was descending the ramp he
slipped and fell on ice that was allowed to accumulate and remain on the ramp. Id. As
owners and operators of the subject property, THE CITY OF NEW ROCHELLE and
NEW ROCHELLE INDUSTRIAL DEVELOPMENT AGENCY violated New York
Labor Laws §§ 200, 240(1) and 241(6). The Respondents also violated New York States
Industrial Code, including, but not limited to, § 23-1.7(d)
6. As a result of the accident the Petitioner, suffered multiple bodily injuries,
including, but not limited to, his neck, back, right hand, left knee, right shoulder and head.
See Petition. Thereafter, Petitioner consulted with medical professionals and has had both
conservative and advanced treatment. To date, Petitioner has had neck, left knee and right
shoulder surgery.
7. Following the accident Plaintiff retained Liakas Law, P.C. to represent him
in his workers’ compensation claim and third-party action.
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8. Petitioner’s workers’ compensation claim was established and HSA
Contracting was deemed to be his employer.
9. On or about September 6, 2023, your affirmant filed suit against NRP
Touchstone JV LLC, as general contractor for the subject project, and Lincoln Renaissance
Apartments LLC, as owner of the subject premises in Supreme Court, Bronx County
bearing Index No. 813601/2023E. See Exhibit “A.”
10. The parties were identified by the construction placard prominently
displayed at the subject project. See Exhibit “E.”
11. On October 26, 2023, Defendants interposed an Answer and denied
ownership of the subject property. See Exhibit “B.”
12. On October 27, 2023, Plaintiff filed a Notice to Admit seeking an admission
that NRP Touchstone JV LLC was the general contractor of the subject project and Lincoln
Renaissance Apartments LLC was the owner of the subject premises. See Exhibit “C.”
13. On November 15, 2023, NRP Touchstone admitted that they were a
contractor at the subject project, but Lincoln Renaissance Apartments LLC again denied
ownership. See Exhibit “D.”
14. Throughout the course of discovery and your affirmants conversations with
counsel for Defendants in the Bronx County, Supreme Court action, your affirmant was
informed that the Respondents were the owners of the subject project, despite what the
project placard indicated.
15. The reason a timely Notice of Claim was not filed against the Respondents
is because your affirmant relied on the placard displayed at the subject project. As such, a
late Notice of Claim is needed.
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16. A proposed Notice of Claim is annexed hereto as Exhibit “F.”
17. As such, you affirmant seeks leave to serve a late Notice of Claim on the
Respondents.
ARGUMENT
I. PETITIONER SHOULD BE GRANTED LEAVE TO SERVE A
LATE NOTICE OF CLAIM UPON THE RESPONDENTS
18. General Municipal Law allows for the exercise of considerable discretion
in determining whether to permit the service of a Late Notice of Claim. (See, General
Municipal Law § 50-e (5); Matter of Harris v. Dormitory Authority, 168 AD2d 560 (2d
Dept. 1990)). In exercising its discretion, the Court considers (1) whether the petitioner has
a reasonable excuse for the failure to serve a timely notice of claim, (2) whether the
municipality acquired actual notice of the essential facts of the claim within 90 days after
the claim arose or within a reasonable time thereafter, and (3) whether the delay would
substantially prejudice the municipality’s maintaining its defense on the merits. Matter of
Alvarenga, 225 AD2d 617 (2d Dept. 1996) (See, General Municipal Law § 50-e (5); Matter
of Melissa G. v. North Babylon Union Free School Dist., 50 AD3d 901 (2008).
Nonetheless, the presence or absence of any one of these factors is not necessarily
determinative and the absence of a reasonable excuse is not necessarily fatal. Matter of
Leeds v. Port Washington Union Free School Dist., 2008 NY Slip Op 07914, 55 AD3d 734
(Appellate Div. 2d Dept., 2008); See Matter of Dell’Italia v. Long Is. R.R. Corp., 31 AD3d
758, 759 (2006); Jordan v. City of New York, 41 AD3d 658, 659 (2007)).
19. Further, GML § 50-e permits the courts to strike an equitable balance
between a public corporation's need for prompt notification of a claim against it, and an
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injured party's interest in just compensation. Matter of Gerzel v. City of New York, 117
AD2d 549 (1st Dept. 1986).
20. The purpose of the Notice of Claim provision is to facilitate timely
investigation and to avoid spurious claims, not to allow municipalities to escape liability
for their negligence. Cancel v. New York City Housing Authority, 200 A.D.2d 384, 608
N.Y.S.2d 188 (1st Dept. 1994). See, Heiman v City of New York, 85 A.D.2d 25, 447
N.Y.S.2d 158 (1st Dept. 1982) (three and a half month delay); Beatty v. Saratoga, 74
A.D.2d 662, 424 N.Y.S.2d 772(3rd Dept. 1980) (four month delay); Bureau v. Newcomb
Central School District, 74 A.D.2d 133, 426 N.Y.S.2d 870 (3rd Dept.1980) (six month
delay); Wemet v. County of Onondaga, 64 A.D.2d 1025, 409 N.Y.S.2d 213 (4th Dept.
1978) (seven month delay). In the absence of any prejudice the Petition must be granted.
21. The Court of Appeals has recently held that the Petitioner’s burden does not
require “extensive” evidence, but must include “some evidence or plausible” argument that
there is no substantial prejudice to the Respondents. Matter of Newcomb v. Middle Country
Cent. Sch. Dist., 28 NY3d 455, 45 NY3d 895, 68 NE3d 715 (2016). Additionally, the Court
of Appeals then shifts the burden of proof to the Respondent, who must demonstrate, “with
particularized evidence,” substantial prejudice. Id.
22. When the condition at issue, such as the one in the case at bar, is transitory
a municipality would be in the same position regarding any investigation even if the Notice
of Claim had been timely served. See, In the Matter of Mykeeya Simpson v. City of New
York, 222 AD3d 986 (2d Dept. 2023); Matter of Ortiz v. Westchester County, 208 AD3d
487 (2d Dept. 2022); Matter of Shumway v. Town of Hempstead, 187 AD3d 758 (2d Dept.
2020).
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23. A court has broad discretion to permit the late filing of a notice of claim.
Davis v. City of New York, 250 AD2d 368 (1st Dept. 1998); Feliciano v. New York City
Housing Authority, 188 AD2d 296 (1st Dept. 1992). The notice of claim provision should
not be used to deny legitimate claims Camacho v. City of New York, 187 AD2d 262 (1st
Dept. 1992) General Municipal Law '50-e(5) is a remedial statute and should be liberally
construed Matter of Santana v. City of New York, 183 AD2d 665 (1st Dept. 1992).
24. Neither the presence or absence of one particular item of those listed in
GML § 50-e(5) are dispositive for when determining a motion to file a late notice of claim.
Rather, all relevant factors are to be considered. Rodriguez v. County of Nassau, 126 AD2d
536 (2nd Dept. 1987).
25. In fact, the Courts frequently overlook the absence of the enumerated
conditions when the Municipality fails to articulate any claim of actual prejudice in
maintaining a defense on the merits. Affloeck v. County of Nassau, 240 AD2d 569, 660
NYS2d131 (2nd Dept. 1997). See also Bollerman v. New York Construction Authority,
668 NYS2d 709 (2nd Dept. 1998).
26. Mere conclusory allegations of prejudice unsubstantiated by an actual
showing of prejudice should not prevent the Court from granting a motion to file a late
notice of claim. Matter of Billman v. Town of Deerpark, 2010 NY Slip Op 04375 (2nd
Dept. 2010), Loomis v. Civette Corino Construction, 54 N.Y.2d 18, 444 N.Y.S.2d 571
(1981). Pursuant to General Municipal Law Section 50-(e)(5), the Respondent(s) must
show that they have suffered substantial prejudice - a far higher of standard of prejudice.
A mere delay in filing a Notice of Claim does not mandate such a finding. Bensen v. Town
of Islip, 99 AD2d 755, 471 NYS2d 670 (2nd Dept. 1984); Mayer v. Dupont, 80 A.D.2d
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799, (1st Dept. 1981).
27. The reasonable excuse for Petitioner’s delay is the jobsite placard indicated
that Lincoln Renaissance Apartments LLC was the owner of the subject premises and
Petitioner had a good faith basis to rely on same. See Exhibit “E.”
28. Due to the transitory nature of the condition, an exterior icy makeshift ramp,
even if the Petitioner filed a Notice of Claim within 90 days the Respondents would not
have had an opportunity to investigate the claim, putting them in the same position that
they are in today and thus they cannot put forth a particularized showing of prejudice.
29. The aforesaid accident and resulting injuries and damage sustained by the
Petitioner were caused by THE CITY OF NEW ROCHELLE and NEW ROCHELLE
INDUSTRIAL DEVELOPMENT AGENCY, as owners and operators of the subject
premises, in violating New York Labor Laws §§ 200, 240(1) and 241(6). Petitioner has
demonstrated that he has satisfied the requirements to bring a Late Notice of Claim.
30. Should this Court not find Petitioner’s excuses to be reasonable, applying
Matter of Melissa G. v. North Babylon Union Free School Dist., the absence of a
reasonable excuse in not necessarily determinative or fatal to Petitioner’s claim. Where the
public corporation acquired timely actual knowledge of the essential facts constituting the
claim is seen as a factor which should be accorded great weight. Matter of Leeds v. Port
Washington Union Free School Dist., 2008 NY Slip Op 07914, 55 AD3d 734 (Appellate
Div. 2d Dept., 2008); See Matter of Dell’Italia v. Long Is. R.R. Corp., 31 AD3d 758, 759
(2006), quoting Matter of Morris v. County of Suffolk, 88 AD2d 956, 956 (1982), aff’d 58
NY2d 767 (1982)). Even when the Petitioner’s reasonable excuse for not timely filing a
Notice of Claim is because he was unaware of the requirement or his injuries prevented the
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Petitioner from filing does not bar him from being granted an extension of time to file
provided the municipality obtained actual notice of the claim. In the Matter of Justin
Montero v. City of New York, 2019 NY Slip Op 07732 (1st Dept 2019).
31. Most compelling is that even when the Petitioner fails to offer any
reasonable excuse, the application must be granted. Matter of Sproule v. New York
Convention Ctr. Operating Corp., 2023 NY Slip Op 01015 (1st Dept. February 13, 2023).
32. Applying the above-referenced case law, the Respondent must now
demonstrate “with particularized evidence,” that they are substantially prejudiced. Matter
of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 45 NY3d 895, 68 NE3d
715 (2016).
CONCLUSION
33. As is demonstrated above, the Respondents can show no prejudice by the
granting of Petitioner’s Petition to File a Late Notice of Claim as Plaintiff was caused to
be injured by a transitory condition. Petitioner relied on the jobsite placard, in good faith,
in determining that Lincoln Renaissance Apartments LLC was the owner of the premises
which they now deny.
34. No prior application has ever been made by this Respondent for the relief
Requested.
WHEREFORE, it is respectfully requested that this Court grant the within
Petitioner and issue and order permitting the late service of the Notice of Claim, granting
such other and further relief as the Court may deem just and proper.
Dated: New York, NY
May 13, 2024
$7
__________________________________
ANTHONY M. DELISO, ESQ.
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Index No.: Year 2024
SUPREME COURT OF THE STATE OF KINGS
COUNTY OF WESTCHESTER
In the matter of the Application of
FULBIO LABASTIDA-RAMIREZ,
Petitioner,
-against-
THE CITY OF NEW ROCHELLE and NEW
ROCHELLE INDUSTRIAL DEVELOPMENT
AGENCY,
Respondents.
ORDER TO SHOW CAUSE
LIAKAS LAW, P.C.
Attorneys for Plaintiff
40 Wall Street, 50th Floor
New York, New York 10005
212-937-7765
To
Attorney(s) for
Service of a copy of the within is hereby admitted.
Dated:
Attorney(s) for
El PLEASE TAKE NOTICE that the within is a true copy of an Order signed by
the Honorable
that was entered in the office of the clerk of the within named Court on
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Preview
FILED: WESTCHESTER COUNTY CLERK 05/14/2024 01:39 PM INDEX NO. 62527/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/14/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER --------------------------------------------------------------------X In the matter of the Application of FULBIO LABASTIDA-RAMIREZ, AFFIRMATION IN SUPPORT Petitioner, Index No.: -against- THE CITY OF NEW ROCHELLE and NEW ROCHELLE INDUSTRIAL DEVELOPMENT AGENCY, Respondents. --------------------------------------------------------------------X ANTHONY M. DELISO, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms to the truth of the following, under penalties of perjury: 1. That I am a Partner with the law firm of Liakas Law, P.C., attorneys for the petitioner herein and as such, I am fully familiar with the facts and circumstances surrounding the within matter, the source of my knowledge being the file maintained by this office. 2. I submit this affirmation in support to the instant application seeking an Order granting the Petitioner leave to serve and file a Late Notice of Claim against Respondents THE CITY OF NEW ROCHELLE and NEW ROCHELLE INDUSTRIAL DEVELOPMENT AGENCY. This application is timely as it has been made within one year and ninety days of Petitioner’s accident. See, Hayes v. City of New York, 100 AD2d 572 (2d Dept. 1984). 3. The following Exhibit are annexed hereto in support of Petitioner’s application: Exhibit “A” – Summons and Verified Complaint; Exhibit “B” – Answer; Exhibit “C” – Notice to Admit; 1 of 9 FILED: WESTCHESTER COUNTY CLERK 05/14/2024 01:39 PM INDEX NO. 62527/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/14/2024 Exhibit “D” – Response to Notice to Admit; Exhibit “E” – Jobsite Placard; Exhibit “F” - Proposed Late Notice of Claim. FACTS 4. This is a claim to recover damages for serious injuries sustained as a result of an accident which occurred on March 1, 2023, at approximately 7:30AM, at a new construction project located at 116 Guion Place, New Rochelle, New York. The premises is owned by the Respondents. 5. On the date of the accident, Petitioner was employed by HSA Contracting as a Laborer. See Petition. The accident occurred while Petitioner was descending an exterior makeshift ramp at the project. Id. While Petitioner was descending the ramp he slipped and fell on ice that was allowed to accumulate and remain on the ramp. Id. As owners and operators of the subject property, THE CITY OF NEW ROCHELLE and NEW ROCHELLE INDUSTRIAL DEVELOPMENT AGENCY violated New York Labor Laws §§ 200, 240(1) and 241(6). The Respondents also violated New York States Industrial Code, including, but not limited to, § 23-1.7(d) 6. As a result of the accident the Petitioner, suffered multiple bodily injuries, including, but not limited to, his neck, back, right hand, left knee, right shoulder and head. See Petition. Thereafter, Petitioner consulted with medical professionals and has had both conservative and advanced treatment. To date, Petitioner has had neck, left knee and right shoulder surgery. 7. Following the accident Plaintiff retained Liakas Law, P.C. to represent him in his workers’ compensation claim and third-party action. 2 of 9 FILED: WESTCHESTER COUNTY CLERK 05/14/2024 01:39 PM INDEX NO. 62527/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/14/2024 8. Petitioner’s workers’ compensation claim was established and HSA Contracting was deemed to be his employer. 9. On or about September 6, 2023, your affirmant filed suit against NRP Touchstone JV LLC, as general contractor for the subject project, and Lincoln Renaissance Apartments LLC, as owner of the subject premises in Supreme Court, Bronx County bearing Index No. 813601/2023E. See Exhibit “A.” 10. The parties were identified by the construction placard prominently displayed at the subject project. See Exhibit “E.” 11. On October 26, 2023, Defendants interposed an Answer and denied ownership of the subject property. See Exhibit “B.” 12. On October 27, 2023, Plaintiff filed a Notice to Admit seeking an admission that NRP Touchstone JV LLC was the general contractor of the subject project and Lincoln Renaissance Apartments LLC was the owner of the subject premises. See Exhibit “C.” 13. On November 15, 2023, NRP Touchstone admitted that they were a contractor at the subject project, but Lincoln Renaissance Apartments LLC again denied ownership. See Exhibit “D.” 14. Throughout the course of discovery and your affirmants conversations with counsel for Defendants in the Bronx County, Supreme Court action, your affirmant was informed that the Respondents were the owners of the subject project, despite what the project placard indicated. 15. The reason a timely Notice of Claim was not filed against the Respondents is because your affirmant relied on the placard displayed at the subject project. As such, a late Notice of Claim is needed. 3 of 9 FILED: WESTCHESTER COUNTY CLERK 05/14/2024 01:39 PM INDEX NO. 62527/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/14/2024 16. A proposed Notice of Claim is annexed hereto as Exhibit “F.” 17. As such, you affirmant seeks leave to serve a late Notice of Claim on the Respondents. ARGUMENT I. PETITIONER SHOULD BE GRANTED LEAVE TO SERVE A LATE NOTICE OF CLAIM UPON THE RESPONDENTS 18. General Municipal Law allows for the exercise of considerable discretion in determining whether to permit the service of a Late Notice of Claim. (See, General Municipal Law § 50-e (5); Matter of Harris v. Dormitory Authority, 168 AD2d 560 (2d Dept. 1990)). In exercising its discretion, the Court considers (1) whether the petitioner has a reasonable excuse for the failure to serve a timely notice of claim, (2) whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or within a reasonable time thereafter, and (3) whether the delay would substantially prejudice the municipality’s maintaining its defense on the merits. Matter of Alvarenga, 225 AD2d 617 (2d Dept. 1996) (See, General Municipal Law § 50-e (5); Matter of Melissa G. v. North Babylon Union Free School Dist., 50 AD3d 901 (2008). Nonetheless, the presence or absence of any one of these factors is not necessarily determinative and the absence of a reasonable excuse is not necessarily fatal. Matter of Leeds v. Port Washington Union Free School Dist., 2008 NY Slip Op 07914, 55 AD3d 734 (Appellate Div. 2d Dept., 2008); See Matter of Dell’Italia v. Long Is. R.R. Corp., 31 AD3d 758, 759 (2006); Jordan v. City of New York, 41 AD3d 658, 659 (2007)). 19. Further, GML § 50-e permits the courts to strike an equitable balance between a public corporation's need for prompt notification of a claim against it, and an 4 of 9 FILED: WESTCHESTER COUNTY CLERK 05/14/2024 01:39 PM INDEX NO. 62527/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/14/2024 injured party's interest in just compensation. Matter of Gerzel v. City of New York, 117 AD2d 549 (1st Dept. 1986). 20. The purpose of the Notice of Claim provision is to facilitate timely investigation and to avoid spurious claims, not to allow municipalities to escape liability for their negligence. Cancel v. New York City Housing Authority, 200 A.D.2d 384, 608 N.Y.S.2d 188 (1st Dept. 1994). See, Heiman v City of New York, 85 A.D.2d 25, 447 N.Y.S.2d 158 (1st Dept. 1982) (three and a half month delay); Beatty v. Saratoga, 74 A.D.2d 662, 424 N.Y.S.2d 772(3rd Dept. 1980) (four month delay); Bureau v. Newcomb Central School District, 74 A.D.2d 133, 426 N.Y.S.2d 870 (3rd Dept.1980) (six month delay); Wemet v. County of Onondaga, 64 A.D.2d 1025, 409 N.Y.S.2d 213 (4th Dept. 1978) (seven month delay). In the absence of any prejudice the Petition must be granted. 21. The Court of Appeals has recently held that the Petitioner’s burden does not require “extensive” evidence, but must include “some evidence or plausible” argument that there is no substantial prejudice to the Respondents. Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 45 NY3d 895, 68 NE3d 715 (2016). Additionally, the Court of Appeals then shifts the burden of proof to the Respondent, who must demonstrate, “with particularized evidence,” substantial prejudice. Id. 22. When the condition at issue, such as the one in the case at bar, is transitory a municipality would be in the same position regarding any investigation even if the Notice of Claim had been timely served. See, In the Matter of Mykeeya Simpson v. City of New York, 222 AD3d 986 (2d Dept. 2023); Matter of Ortiz v. Westchester County, 208 AD3d 487 (2d Dept. 2022); Matter of Shumway v. Town of Hempstead, 187 AD3d 758 (2d Dept. 2020). 5 of 9 FILED: WESTCHESTER COUNTY CLERK 05/14/2024 01:39 PM INDEX NO. 62527/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/14/2024 23. A court has broad discretion to permit the late filing of a notice of claim. Davis v. City of New York, 250 AD2d 368 (1st Dept. 1998); Feliciano v. New York City Housing Authority, 188 AD2d 296 (1st Dept. 1992). The notice of claim provision should not be used to deny legitimate claims Camacho v. City of New York, 187 AD2d 262 (1st Dept. 1992) General Municipal Law '50-e(5) is a remedial statute and should be liberally construed Matter of Santana v. City of New York, 183 AD2d 665 (1st Dept. 1992). 24. Neither the presence or absence of one particular item of those listed in GML § 50-e(5) are dispositive for when determining a motion to file a late notice of claim. Rather, all relevant factors are to be considered. Rodriguez v. County of Nassau, 126 AD2d 536 (2nd Dept. 1987). 25. In fact, the Courts frequently overlook the absence of the enumerated conditions when the Municipality fails to articulate any claim of actual prejudice in maintaining a defense on the merits. Affloeck v. County of Nassau, 240 AD2d 569, 660 NYS2d131 (2nd Dept. 1997). See also Bollerman v. New York Construction Authority, 668 NYS2d 709 (2nd Dept. 1998). 26. Mere conclusory allegations of prejudice unsubstantiated by an actual showing of prejudice should not prevent the Court from granting a motion to file a late notice of claim. Matter of Billman v. Town of Deerpark, 2010 NY Slip Op 04375 (2nd Dept. 2010), Loomis v. Civette Corino Construction, 54 N.Y.2d 18, 444 N.Y.S.2d 571 (1981). Pursuant to General Municipal Law Section 50-(e)(5), the Respondent(s) must show that they have suffered substantial prejudice - a far higher of standard of prejudice. A mere delay in filing a Notice of Claim does not mandate such a finding. Bensen v. Town of Islip, 99 AD2d 755, 471 NYS2d 670 (2nd Dept. 1984); Mayer v. Dupont, 80 A.D.2d 6 of 9 FILED: WESTCHESTER COUNTY CLERK 05/14/2024 01:39 PM INDEX NO. 62527/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/14/2024 799, (1st Dept. 1981). 27. The reasonable excuse for Petitioner’s delay is the jobsite placard indicated that Lincoln Renaissance Apartments LLC was the owner of the subject premises and Petitioner had a good faith basis to rely on same. See Exhibit “E.” 28. Due to the transitory nature of the condition, an exterior icy makeshift ramp, even if the Petitioner filed a Notice of Claim within 90 days the Respondents would not have had an opportunity to investigate the claim, putting them in the same position that they are in today and thus they cannot put forth a particularized showing of prejudice. 29. The aforesaid accident and resulting injuries and damage sustained by the Petitioner were caused by THE CITY OF NEW ROCHELLE and NEW ROCHELLE INDUSTRIAL DEVELOPMENT AGENCY, as owners and operators of the subject premises, in violating New York Labor Laws §§ 200, 240(1) and 241(6). Petitioner has demonstrated that he has satisfied the requirements to bring a Late Notice of Claim. 30. Should this Court not find Petitioner’s excuses to be reasonable, applying Matter of Melissa G. v. North Babylon Union Free School Dist., the absence of a reasonable excuse in not necessarily determinative or fatal to Petitioner’s claim. Where the public corporation acquired timely actual knowledge of the essential facts constituting the claim is seen as a factor which should be accorded great weight. Matter of Leeds v. Port Washington Union Free School Dist., 2008 NY Slip Op 07914, 55 AD3d 734 (Appellate Div. 2d Dept., 2008); See Matter of Dell’Italia v. Long Is. R.R. Corp., 31 AD3d 758, 759 (2006), quoting Matter of Morris v. County of Suffolk, 88 AD2d 956, 956 (1982), aff’d 58 NY2d 767 (1982)). Even when the Petitioner’s reasonable excuse for not timely filing a Notice of Claim is because he was unaware of the requirement or his injuries prevented the 7 of 9 FILED: WESTCHESTER COUNTY CLERK 05/14/2024 01:39 PM INDEX NO. 62527/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/14/2024 Petitioner from filing does not bar him from being granted an extension of time to file provided the municipality obtained actual notice of the claim. In the Matter of Justin Montero v. City of New York, 2019 NY Slip Op 07732 (1st Dept 2019). 31. Most compelling is that even when the Petitioner fails to offer any reasonable excuse, the application must be granted. Matter of Sproule v. New York Convention Ctr. Operating Corp., 2023 NY Slip Op 01015 (1st Dept. February 13, 2023). 32. Applying the above-referenced case law, the Respondent must now demonstrate “with particularized evidence,” that they are substantially prejudiced. Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 45 NY3d 895, 68 NE3d 715 (2016). CONCLUSION 33. As is demonstrated above, the Respondents can show no prejudice by the granting of Petitioner’s Petition to File a Late Notice of Claim as Plaintiff was caused to be injured by a transitory condition. Petitioner relied on the jobsite placard, in good faith, in determining that Lincoln Renaissance Apartments LLC was the owner of the premises which they now deny. 34. No prior application has ever been made by this Respondent for the relief Requested. WHEREFORE, it is respectfully requested that this Court grant the within Petitioner and issue and order permitting the late service of the Notice of Claim, granting such other and further relief as the Court may deem just and proper. Dated: New York, NY May 13, 2024 $7 __________________________________ ANTHONY M. DELISO, ESQ. 8 of 9 FILED: WESTCHESTER COUNTY CLERK 05/14/2024 01:39 PM INDEX NO. 62527/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/14/2024 Index No.: Year 2024 SUPREME COURT OF THE STATE OF KINGS COUNTY OF WESTCHESTER In the matter of the Application of FULBIO LABASTIDA-RAMIREZ, Petitioner, -against- THE CITY OF NEW ROCHELLE and NEW ROCHELLE INDUSTRIAL DEVELOPMENT AGENCY, Respondents. ORDER TO SHOW CAUSE LIAKAS LAW, P.C. Attorneys for Plaintiff 40 Wall Street, 50th Floor New York, New York 10005 212-937-7765 To Attorney(s) for Service of a copy of the within is hereby admitted. Dated: Attorney(s) for El PLEASE TAKE NOTICE that the within is a true copy of an Order signed by the Honorable that was entered in the office of the clerk of the within named Court on 9 of 9