Preview
FILED: ERIE COUNTY CLERK 04/23/2024 08:52 AM INDEX NO. 805760/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
KARAMIRA NGENDAHIMANA as
Parent and Natural Guardian of
A.N., an Infant,
Claimants
-vs- PETITION
CITY OF BUFFALO,
Respondent
STATEOFNEWYORK )
COUNTY OF ERIE ) ss:
TOWN OF AMHERST )
FREDERICK G. ATTEA, JR., being duly sworn, deposes and says:
1. Your Deponent is the attorney of record for the Claimants in the above-
entitled action and as such I am fully familiar with the facts and circumstances surrounding
the within action and all proceedings heretofore had herein,
2. This Affidavit is being offered in support of Claimants' Order to Show Cause
requesting leave to file a late Notice of Claim against the Respondent, City of Buffalo,
pursuant to General Municipal Law §50(e).
3. This case involves an Infant Claimant who was struck by a train on June
28, 2023 at the end of Wick Street in Buffalo, New York.
4. At the time of the subject incident, the Infant Claimant was eight (8) years
old. The facts are still not completely known to the Claimants, for reasons which will be
discussed. The Infant Claimant was playing on the street where he and his fam~ly lived,
Wick Street. Wick Street ends at train tracks which are owned by CSX Railroad. On the
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other side of the train tracks, directly across from Wick Street, is a playground and a
school. It was common practice for neighborhood residents, particularly children, to
cross the tracks in that general area.
5. The Infant Claimant entered the train tracks at the end of Wick Street,
where he was struck by a train. There are no signs at the end of Wick Street warning of
the tracks. More importantly, there are no barricades, fences, or deterrents preventing
pedestrians, especially infants, from entering the railroad tracks at the end of the street.
Consequently, the Infant was allowed free access to this inherently dangerous condition.
The presence of the train tracks, as well as the school with a playground on the other side
of the tracks, created an attractive nuisance. Attached as Exhibit "A" are photographs
depicting the unfettered access to the railroad tracks from Wick Street.
6. As a result of the Respondent failing to set up any barricades, fencing,
warnings, or other similar barriers preventing children from accessing the train tracks, the
Infant Claimant entered the area and was struck by a train.
7. As a result being struck by the train, the Infant Claimant was severely
injured necessitating the traumatic amputation of his leg at his hip together with many
other injuries the full degree and extent of which are not fully known at this time. The
Infant Claimant was hospitalized for several months, including the entire ninety (90) day
notice of clai'm period.
8. In detennining whether to grant a motion allowing a claimant to serve a late
Notice of Claim pursuant to General Municipal Law 50-e(S), the primary criteria for the
Court to consider is (1) the reasonableness of the excuse offered for the delay; (2) whether
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the municipality obtained actual knowledge of the essential facts constituting the claim
within the 90-day filing period or a reasonable time thereafter; and (3) whether the
municipality was prejudiced by the applicant's failure to comply with the statute, i.e. file a
Notice of Claim within 90 days. See Genera] Municipal Law §50-e (McKinney 2013);
Suave v. City of Buffalo, 177 A.D.2d 934, 577 N.Y.S.2d 979 (4th Dept. 1991);
McAdams v. Police Dept. Town of Clarkson, 184 A.D.2d 847,584 N.Y.S.2d 343 (Yct
Dept.1992); and Dannstedter v. Buffalo Sewer Authority. 96 A.D.2d 1148, 467 N.Y.S.2d
460 (4th Dept. 1983).
9. No single factor mentioned above is dispositive and, absent a clear abuse
of discretion, a trial court's detennination in that regard will not be disturbed. Matter of
Leeds v. Port Washington Union Free School Dist., 55 A.D.3d 734. The courts are also
vested with broad discretion to grant applications for leave to serve a late notice. Matter
ofRush v. County of Suffolk, 35 A.D.3d 619; Alvarenga v. Finlay, 225 A.D.2d 617.
I 0. The Court of Appeals in Matter ofNewcomb v Middle Country Cent. Sch.
Dist., 2 N.Y.3d 455 resolved a split in Appellate Division authority regarding which
party has the burden to demonstrate that a late Notice of Claim substantially
prejudices a public corporation.
11. The Court of Appeals has clarified that while the initial burden rests with
the Petitioner to demonstrate why the failure to comply with the Notice of Claim
requirements would not substantially prejudice the public corporation, once that burden
has been satisfied, the public corporation must respond with a particularized evidentiary
showing that they will be substantially prejudiced if the late Notice is allowed. Id.
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12. This court has immense discretion in allowing said late notice of claim. See,
Ledet v. State, 207 AD2d 965 (4 th Dept., 1994); Matter of Gavigan v. State, 176
AD2d 1117 (3d Dept., 1991); Carmen v. State, 49 AD2d 965 (3d Dept, 1975); Reinmuth
v. State of New York, 65 AD2d 648 (3d Dept., 1978); Eagle Ins. Co v. State, 71
AD2d 726 (3d Dept., 1979); Remley v. State, 665 NYS2d, 1005 (Ct. Cl. 1997); Avila
v. State of New York, 131 Misc.2d 449 (Ct. Cl 1986).
13. The time to file a late notice of claim has not expired as the statute of
limitations is one year and 90 days. To date, nine months have passed and there remains
sufficient time to file said claim against the City of Buffalo.
14. Here, the City of Buffalo had actual notice of this claim since they received
the 911 calls and dispatched police and emergency personnel. Further, the City of Buffalo
is the one who created, owned, controlled, and maintained the street.
15. Further, an Infant had been injured in similar fashion a few years prior a
very short distance from where this crash occurred. That incident resulted in a case styled
Joshlyn Washington, Individually and as parent and natural guardian of J.M.B. , an infant.
16. More importantly, Your Deponent was just provided with documents which
confirm the City of Buffalo and CSX were put on notice of the defective condition that is
complained of here.
17. Families from the neighborhoods on Broadway near Wick Street petitioned
the City of Buffalo to limit access to the CSX railroad tracks for the "children's safety."
Further, members of the Common Council exchanged correspondence with CSX on this
very issue. Copies of the correspondence with record certification from the City of
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Buffalo are attached as Exhibit "B".
18. The Infant Claimant and his family are refugees from the Democratic
Republic of the Congo. The family does not speak English. Their native language is
Kinyarwanda. To date, Your Deponent has not found a translator in the area. There is a
friend of the family who is able to do some translation. Consequently, Your Deponent
has had a difficult time communicating with my clients or learning the exact details of
what occurred.
19. Further, the Infant Claimant's injuries were very significant. There were
questions about whether he would survive the trauma. There was also a lengthy
hospitalization. The family's focus was clearly on their son's health, treatment, and how
they would take care of him in the future.
20. Additionally, the Infant Claimant's injuries and this case were well
publicized. The Buffalo News and several local news stations ran stories, indicating the
child lived on Wick Street and entered the tracks from that street.
21. While attempting to investigate this claim, Your Deponent jointly counseled
with Patrick J. Donoghue, Esq. of Godwin Hurley Donoghue, LLP. Mr. Donoghue
specializes in railroad injuries. Mr. Donoghue was of the opinion that the absence of any
barriers, barricades, fencing, and/or signs, allowed the Infant Claimant to freely enter the
train tracks, where he sustained his injury. Additionally, the presence of the school with a
playground that was accessible by crossing the train tracks created an attractive nuisance
for children.
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22. There will be no prejudice to the City of Buffalo by allowing the Claimants
to file a late Notice of Claim. The City of Buffalo maintains and controls Wick Street.
They were the entity who failed to place any signs, fences, or barricades on the street.
They had actual notice of the incident and the Infant Claimant's injuries when they
received the 911 call. They further had been aware of the dangers the open tracks posed
to children.
23. Your Deponent is not aware of any witnesses and therefore the City would
not be prejudiced by any delay in speaking with witnesses. Further, upon information and
belief, the City contacted the CSX railroad Police who also investigated the scene. The
City would have access not only to their own investigation but also to CSX's.
24. There has been no action commenced to date and therefore the city would
not be prejudiced by discovery that have been undertaken between the Claimants and the
railroad.
25. As stated earlier, the Infant Claimant's date of birth is November 16, 2014.
Consequently, there is plenty of time left on the statute for his personal injuries.
26. The late notice of claim will have no effect or substantial prejudice on the
Respondent's ability to investigate the relevant facts and fully defend itself with regard to
the Infant Claimant's injuries as the street and surrounding area has not been altered in
any way. There would be no prejudice to the City of Buffalo as the City may take a
deposition on notice via 50H, and further depose the Infant Claimant, in the course of
litigation of this matter. Any defenses to be asserted by the City of Buffalo would not
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change or be any different than if the Notice of Claim was filed within the 90 days. The
bottom line being, they already knew about the incident and the defective condition.
27. Further, the City created and maintained the defective condition that is the
subject of the litigation, and it is still in the same condition as it was when the Infant
Claimant was injured. Consequently, they cannot claim prejudice due to the inability to
investigate, inspect, photograph, and examine the defective condition which precipitated
the Infant Claimant's injury. Additionally, a Petition signed by local citizens was sent to
the City requesting that barriers be placed in between the streets and tracks as far back as
the year 2000.
28. The case law is clear that it is incumbent upon the City to show specific
actual prejudice, created by the late notice of claim, and not assert generalities without
support. See In the Matter of Ra mond Newcomb v. Middle Coun Central School
District, 28 NY3d 455, 45 N.Y.S.3d 895 (2016).
WHEREFORE, the Claimants respectfully request an Order granting leave to file a
late Notice of Claim pursuant to General Municipal Law §50-e permitting the Claimants to
serve a late Notice of Claim upon Respondent, City of Buffalo, and for such other and
further relief as the Court deems proper.
c===------------
~--
FREDERICK G. ATTEA, JR.
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Subscribed and sworn to before me
this 22 nd day of April, 2024
Stacy Mi l
Notary Pu ic, State of New York
Qualified in Erie County
My Commission Expires: 8/8/27
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PRINTING SPECIFICATIONS AND WORD COUNT
The undersigned hereby certified pursuant to 22 NYCRR 202.8-b that the
foregoing Petition complies with the work count limit; was prepared on a computer using
Microsoft Word; and that the word count is 1,864 words.
Dated: April 22, 2024
Snyder, New York .~-
-----__ .___~
FREDERICK G. ATTEA, JR., ESQ.
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Preview
FILED: ERIE COUNTY CLERK 04/23/2024 08:52 AM INDEX NO. 805760/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE KARAMIRA NGENDAHIMANA as Parent and Natural Guardian of A.N., an Infant, Claimants -vs- PETITION CITY OF BUFFALO, Respondent STATEOFNEWYORK ) COUNTY OF ERIE ) ss: TOWN OF AMHERST ) FREDERICK G. ATTEA, JR., being duly sworn, deposes and says: 1. Your Deponent is the attorney of record for the Claimants in the above- entitled action and as such I am fully familiar with the facts and circumstances surrounding the within action and all proceedings heretofore had herein, 2. This Affidavit is being offered in support of Claimants' Order to Show Cause requesting leave to file a late Notice of Claim against the Respondent, City of Buffalo, pursuant to General Municipal Law §50(e). 3. This case involves an Infant Claimant who was struck by a train on June 28, 2023 at the end of Wick Street in Buffalo, New York. 4. At the time of the subject incident, the Infant Claimant was eight (8) years old. The facts are still not completely known to the Claimants, for reasons which will be discussed. The Infant Claimant was playing on the street where he and his fam~ly lived, Wick Street. Wick Street ends at train tracks which are owned by CSX Railroad. On the 1 of 9 FILED: ERIE COUNTY CLERK 04/23/2024 08:52 AM INDEX NO. 805760/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 other side of the train tracks, directly across from Wick Street, is a playground and a school. It was common practice for neighborhood residents, particularly children, to cross the tracks in that general area. 5. The Infant Claimant entered the train tracks at the end of Wick Street, where he was struck by a train. There are no signs at the end of Wick Street warning of the tracks. More importantly, there are no barricades, fences, or deterrents preventing pedestrians, especially infants, from entering the railroad tracks at the end of the street. Consequently, the Infant was allowed free access to this inherently dangerous condition. The presence of the train tracks, as well as the school with a playground on the other side of the tracks, created an attractive nuisance. Attached as Exhibit "A" are photographs depicting the unfettered access to the railroad tracks from Wick Street. 6. As a result of the Respondent failing to set up any barricades, fencing, warnings, or other similar barriers preventing children from accessing the train tracks, the Infant Claimant entered the area and was struck by a train. 7. As a result being struck by the train, the Infant Claimant was severely injured necessitating the traumatic amputation of his leg at his hip together with many other injuries the full degree and extent of which are not fully known at this time. The Infant Claimant was hospitalized for several months, including the entire ninety (90) day notice of clai'm period. 8. In detennining whether to grant a motion allowing a claimant to serve a late Notice of Claim pursuant to General Municipal Law 50-e(S), the primary criteria for the Court to consider is (1) the reasonableness of the excuse offered for the delay; (2) whether 2 of 9 FILED: ERIE COUNTY CLERK 04/23/2024 08:52 AM INDEX NO. 805760/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 the municipality obtained actual knowledge of the essential facts constituting the claim within the 90-day filing period or a reasonable time thereafter; and (3) whether the municipality was prejudiced by the applicant's failure to comply with the statute, i.e. file a Notice of Claim within 90 days. See Genera] Municipal Law §50-e (McKinney 2013); Suave v. City of Buffalo, 177 A.D.2d 934, 577 N.Y.S.2d 979 (4th Dept. 1991); McAdams v. Police Dept. Town of Clarkson, 184 A.D.2d 847,584 N.Y.S.2d 343 (Yct Dept.1992); and Dannstedter v. Buffalo Sewer Authority. 96 A.D.2d 1148, 467 N.Y.S.2d 460 (4th Dept. 1983). 9. No single factor mentioned above is dispositive and, absent a clear abuse of discretion, a trial court's detennination in that regard will not be disturbed. Matter of Leeds v. Port Washington Union Free School Dist., 55 A.D.3d 734. The courts are also vested with broad discretion to grant applications for leave to serve a late notice. Matter ofRush v. County of Suffolk, 35 A.D.3d 619; Alvarenga v. Finlay, 225 A.D.2d 617. I 0. The Court of Appeals in Matter ofNewcomb v Middle Country Cent. Sch. Dist., 2 N.Y.3d 455 resolved a split in Appellate Division authority regarding which party has the burden to demonstrate that a late Notice of Claim substantially prejudices a public corporation. 11. The Court of Appeals has clarified that while the initial burden rests with the Petitioner to demonstrate why the failure to comply with the Notice of Claim requirements would not substantially prejudice the public corporation, once that burden has been satisfied, the public corporation must respond with a particularized evidentiary showing that they will be substantially prejudiced if the late Notice is allowed. Id. 3 of 9 FILED: ERIE COUNTY CLERK 04/23/2024 08:52 AM INDEX NO. 805760/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 12. This court has immense discretion in allowing said late notice of claim. See, Ledet v. State, 207 AD2d 965 (4 th Dept., 1994); Matter of Gavigan v. State, 176 AD2d 1117 (3d Dept., 1991); Carmen v. State, 49 AD2d 965 (3d Dept, 1975); Reinmuth v. State of New York, 65 AD2d 648 (3d Dept., 1978); Eagle Ins. Co v. State, 71 AD2d 726 (3d Dept., 1979); Remley v. State, 665 NYS2d, 1005 (Ct. Cl. 1997); Avila v. State of New York, 131 Misc.2d 449 (Ct. Cl 1986). 13. The time to file a late notice of claim has not expired as the statute of limitations is one year and 90 days. To date, nine months have passed and there remains sufficient time to file said claim against the City of Buffalo. 14. Here, the City of Buffalo had actual notice of this claim since they received the 911 calls and dispatched police and emergency personnel. Further, the City of Buffalo is the one who created, owned, controlled, and maintained the street. 15. Further, an Infant had been injured in similar fashion a few years prior a very short distance from where this crash occurred. That incident resulted in a case styled Joshlyn Washington, Individually and as parent and natural guardian of J.M.B. , an infant. 16. More importantly, Your Deponent was just provided with documents which confirm the City of Buffalo and CSX were put on notice of the defective condition that is complained of here. 17. Families from the neighborhoods on Broadway near Wick Street petitioned the City of Buffalo to limit access to the CSX railroad tracks for the "children's safety." Further, members of the Common Council exchanged correspondence with CSX on this very issue. Copies of the correspondence with record certification from the City of 4 of 9 FILED: ERIE COUNTY CLERK 04/23/2024 08:52 AM INDEX NO. 805760/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 Buffalo are attached as Exhibit "B". 18. The Infant Claimant and his family are refugees from the Democratic Republic of the Congo. The family does not speak English. Their native language is Kinyarwanda. To date, Your Deponent has not found a translator in the area. There is a friend of the family who is able to do some translation. Consequently, Your Deponent has had a difficult time communicating with my clients or learning the exact details of what occurred. 19. Further, the Infant Claimant's injuries were very significant. There were questions about whether he would survive the trauma. There was also a lengthy hospitalization. The family's focus was clearly on their son's health, treatment, and how they would take care of him in the future. 20. Additionally, the Infant Claimant's injuries and this case were well publicized. The Buffalo News and several local news stations ran stories, indicating the child lived on Wick Street and entered the tracks from that street. 21. While attempting to investigate this claim, Your Deponent jointly counseled with Patrick J. Donoghue, Esq. of Godwin Hurley Donoghue, LLP. Mr. Donoghue specializes in railroad injuries. Mr. Donoghue was of the opinion that the absence of any barriers, barricades, fencing, and/or signs, allowed the Infant Claimant to freely enter the train tracks, where he sustained his injury. Additionally, the presence of the school with a playground that was accessible by crossing the train tracks created an attractive nuisance for children. 5 of 9 FILED: ERIE COUNTY CLERK 04/23/2024 08:52 AM INDEX NO. 805760/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 22. There will be no prejudice to the City of Buffalo by allowing the Claimants to file a late Notice of Claim. The City of Buffalo maintains and controls Wick Street. They were the entity who failed to place any signs, fences, or barricades on the street. They had actual notice of the incident and the Infant Claimant's injuries when they received the 911 call. They further had been aware of the dangers the open tracks posed to children. 23. Your Deponent is not aware of any witnesses and therefore the City would not be prejudiced by any delay in speaking with witnesses. Further, upon information and belief, the City contacted the CSX railroad Police who also investigated the scene. The City would have access not only to their own investigation but also to CSX's. 24. There has been no action commenced to date and therefore the city would not be prejudiced by discovery that have been undertaken between the Claimants and the railroad. 25. As stated earlier, the Infant Claimant's date of birth is November 16, 2014. Consequently, there is plenty of time left on the statute for his personal injuries. 26. The late notice of claim will have no effect or substantial prejudice on the Respondent's ability to investigate the relevant facts and fully defend itself with regard to the Infant Claimant's injuries as the street and surrounding area has not been altered in any way. There would be no prejudice to the City of Buffalo as the City may take a deposition on notice via 50H, and further depose the Infant Claimant, in the course of litigation of this matter. Any defenses to be asserted by the City of Buffalo would not 6 of 9 FILED: ERIE COUNTY CLERK 04/23/2024 08:52 AM INDEX NO. 805760/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 change or be any different than if the Notice of Claim was filed within the 90 days. The bottom line being, they already knew about the incident and the defective condition. 27. Further, the City created and maintained the defective condition that is the subject of the litigation, and it is still in the same condition as it was when the Infant Claimant was injured. Consequently, they cannot claim prejudice due to the inability to investigate, inspect, photograph, and examine the defective condition which precipitated the Infant Claimant's injury. Additionally, a Petition signed by local citizens was sent to the City requesting that barriers be placed in between the streets and tracks as far back as the year 2000. 28. The case law is clear that it is incumbent upon the City to show specific actual prejudice, created by the late notice of claim, and not assert generalities without support. See In the Matter of Ra mond Newcomb v. Middle Coun Central School District, 28 NY3d 455, 45 N.Y.S.3d 895 (2016). WHEREFORE, the Claimants respectfully request an Order granting leave to file a late Notice of Claim pursuant to General Municipal Law §50-e permitting the Claimants to serve a late Notice of Claim upon Respondent, City of Buffalo, and for such other and further relief as the Court deems proper. c===------------ ~-- FREDERICK G. ATTEA, JR. 7 of 9 FILED: ERIE COUNTY CLERK 04/23/2024 08:52 AM INDEX NO. 805760/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 Subscribed and sworn to before me this 22 nd day of April, 2024 Stacy Mi l Notary Pu ic, State of New York Qualified in Erie County My Commission Expires: 8/8/27 8 of 9 FILED: ERIE COUNTY CLERK 04/23/2024 08:52 AM INDEX NO. 805760/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 PRINTING SPECIFICATIONS AND WORD COUNT The undersigned hereby certified pursuant to 22 NYCRR 202.8-b that the foregoing Petition complies with the work count limit; was prepared on a computer using Microsoft Word; and that the word count is 1,864 words. Dated: April 22, 2024 Snyder, New York .~- -----__ .___~ FREDERICK G. ATTEA, JR., ESQ. 9 of 9