Preview
FILED: NASSAU COUNTY CLERK 05/27/2024 11:21 AM INDEX NO. 619279/2023
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/27/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
------------------------------------------------------------- X
SERGEY KADINSKY, on behalf of himself
and all other similarly situated, Index No: 619279/2023
Plaintiff
-against- BIENSTOCK AFFIRMATION
IN SUPPORT OF MOTION FOR
TOWN OF HEMPSTEAD, LEAVE TO FILE LATE NOTICE
OF CLAIM
Defendant.
------------------------------------------------------------- X
Martin Bienstock, an attorney duly admitted to practice before the Courts of the State of
New York, affirms the truth of the following under penalties of law:
1. I am managing partner at the law firm of Bienstock PLLC, attorneys for Plaintiff
herein. I am fully familiar with the facts and circumstances surrounding this matter as they relate
to this motion.
2. This affirmation is submitted in support of the motion seeking an Order:
a) for leave to have the Notice of Claim dated May 17, 2024 (Exhibit “A”) deemed
timely served upon the Town of Hempstead, nunc pro tunc; or, in the alternative,
b) granting Plaintiff leave to file a late Notice of Claim; and
c) for such other and further relief which the Court deems just and proper.
Background
3. Plaintiff has filed the within putative class action claim against the Town of
Hempstead based inter alia on the Town’s unlawful issuance of Notices of Liability. Dkt. No. 2,
18.
4. The action alleges inter alia that the Town issued Notices of Liability without
evidence that the prima facie elements of a violation had occurred. It further alleges that the Town
included in the Notices a false sworn statement that sufficient evidence existed to conclude that a
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violation had occurred, when no such evidence existed. The Amended Complaint also alleges that
the Town procured court judgments through false affidavits asserting that there was evidence that
a violation had occurred, when there was no evidence of prima facie elements of a violation.
5. Plaintiff has asserted claims for unjust enrichment, fraud, negligent
misrepresentation, unlawful delegation, due process, equal protection, and other claims shown in
the Amended Complaint, and seeks damages and declaratory relief on behalf of the class.
6. Plaintiff’s allegations are systemic and generic and do not depend on facts specific
to his particular Notice of Liability. His complaints concern high-level actions taken by the Town
and its agents in which the principal goal was to hide from Plaintiff the facts relevant to his claim.
7. The action is for the benefit of the public, and therefore no Notice of Claim should
be required. The Town has argued that a Notice of Claim is required however. For the resolution
of doubt, Plaintiff submits this motion seeking leave to file a late Notice of Claim.
Standard
8. “The purpose of the notice of claim is to alert the municipality to the existence of
the claim so that it can promptly investigate and preserve any relevant evidence before the passage
of time renders such evidence unavailable or lessens its probative value.” Jaime v. City of New
York, No. 15, 2024 WL 1200216, at *3 (N.Y. Mar. 21, 2024).
9. General Municipal Law § 50–e(5) permits a court, in its discretion, to extend the
time for a Plaintiff to serve a notice of claim.” Matter of Newcomb v. Middle Country Cent. Sch.
Dist., 28 N.Y.3d 455, 460–461 (2016).
10. In determining whether to grant leave to serve a late notice of claim, the court must
consider all relevant circumstances, including whether (1) the claimant demonstrated a reasonable
excuse for the failure to timely serve the notice, (2) the municipal entity acquired actual knowledge
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of the essential facts constituting the claim within 90 days after the claim arose or a reasonable
time thereafter, and (3) the delay in seeking leave would substantially prejudice the municipal
entity in its ability to defend against the action. Id., 28 N.Y.3d at 463–464.
11. Even when a petitioner fails to establish a reasonable excuse for her delay in
seeking leave to serve a late notice of claim, if “there is actual knowledge and an absence of
prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice
of claim.” Matter of Anghel v Town of Hempstead, 2024 NY Slip Op 00420 (Second Dept., January
31, 2024).
12. Each of the relevant factors supports Plaintiff’s application. In any event, Plainitff
is alleging that the Town systematically, knowingly, and intentionally engaged in the behavior at
issue, which was itself designed to hide from him the facts. In these circumstances, any late notice
should be excused.
Plaintiff has a Reasonable Excuse for Failing to Timely Serve the Notice.
13. Plaintiff received a Notice of Liability on May 18, 2023, which imposed liability
of $250.
14. Plaintiff was unaware that the Notice, which included a false, sworn affirmation,
was without legal basis.
15. Plaintiff therefore paid the assessed liability of $250 on June 1, 2023.
16. Months later, Plaintiff learned that requests made under the Freedom of Information
Law (FOIL) had revealed that the Notice of Liability was baseless, fraudulent, and illegal, and that
the Town did not have evidence that a violation had occurred.
17. By then, the 90-day deadline to file a Notice of Claim already had elapsed.
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18. In those circumstances, the Plaintiff has a reasonable excuse for not serving the
Notice of Claim within the statutory time frame. First, he became aware of the injury he sustained
only after the 90-day deadline to file a Notice of Claim had expired. Matter of Dewey v Town of
Colonie, 54 A.D.3d 1142, 1143 (3rd Dept. 2008) (Plaintiff has a reasonable excuse as he was
“unaware of respondents' potential liability until they had the chance to review the materials that
respondents provided to them in connection with their FOIL requests.”).
19. In addition, the Town itself was responsible for Plaintiff’s lack of knowledge
concerning his claim, because the Town actively misled him, including through the use of a false,
sworn affirmation within the Notice of Liability. Amended Complaint, Exh. D (Dkt. 22). The lack
of knowledge excuses the late filing. Matter of Stevenson v Monroe County, 97 A.D.2d 969, 970
(4th Dept 1983), aff’d, 63 N.Y.2d 963 (1984) (“Where discovery of the facts underlying the claim
is delayed due to no fault of the claimant, the delay in serving a notice of claim has been held to
be justified”); Wemett v Onondaga County, 64 A.D.2d 1025, 1025 (4th Dept 1978) (“A just claim
for damages . . . undiagnosed during the statutory 90-day period, should not be forfeited for failure
to give notice”).
The Town Acquired Actual Knowledge of the Essential Facts Constituting the Claim.
20. General Municipal Law § 50–e(5) provides that one factor favoring a late Notice
of Claim is if “the municipal entity acquired actual knowledge of the essential facts constituting
the claim within 90 days after the claim arose or a reasonable time thereafter.” Here, the Town
became aware of the facts underlying the claim within the statutory period.
21. The gravamen of Plaintiff’s complaint is that the Town issued the Notices of
Liability without evidence of prima facie elements of a violation. The Town knew that it lacked
such evidence because a processor “trained in State law” was assigned to the matter. See Amended
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Complaint, Ex. A (Dkt. 19), at 37. State law is clear in identifying the elements of a violation, and
the processes for issuing a Notice clearly did not allow for the collection of evidence sufficient
under State law.
22. In addition, by utilizing a form Notice of Liability containing a sworn statement
that the sufficient evidence of a violation did exist, the Town undertook to know whether or not
the elements of a violation were being met.
23. Accordingly, the Town knew that it lacked evidence of the prima facie elements of
a claim, as Plaintiff alleged. Similarly, the Town knew that its Specialists did not review evidence
other than recorded images, as it claimed in the Specialist Certificate, and that the reviewed
information was not sufficient to conclude that a violation did exist.
24. Moreover, the nature of the reviews is described in the relevant contract and in the
training materials that the Town had. Indeed, Plaintiff became aware of his claim through materials
received as a result of a FOIL request.
25. Moreover, Plaintiff is alleging that the Town intentionally misled Plaintiff by
knowingly issuing Notices of Liability without sufficient evidence, and intentionally including a
falsified Specialist Certification within the Notices. Such intentionally misleading actions of
necessity were known to the Town.
26. The Town also knew about Plaintiff’s claims because of court proceedings brought
against the Town and against Suffolk County.
27. The Town of Hempstead uses the same vendor for managing its stop-arm program
as does the County of Suffolk. Vehicle owners put the Town on notice by challenging the
sufficiency of the Notices at hearings in Nassau and Suffolk.
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28. For example, on September 21, 2022, the Plaintiff in the Croce matter put the
County of Suffolk on notice that the Suffolk notices did not contain sufficient evidence to support
a violation. Exhibit B, at 16 of 71, et seq. That Plaintiff pursued his case through appeal, which
ultimately was decided in his favor. People v Croce, 81 Misc. 3d 31 (App Term 2023).
29. On November 30, 2023, the court held in favor of the Plaintiff in Croce. The court
ruled that the generic evidence packet at issue, which was the same one used by the Town, did not
include evidence of prima facie elements of the claim, and therefore would be dismissed.
30. After Appellate Term issued the Croce opinion, Suffolk County began regularly to
consent to reversal of trial court VTL § 1174-a decisions on appeal. See, e.g., People v. Seidenberg,
81 Misc. 3d 144(A) (App. Term. 2024) (“Defendant appeals, and the People consent to a reversal
in light of this court’s decision in People v Croce”); People v. Maxwell, 81 Misc. 3d 144(A) (App.
Term. 2024) (same); People v. Kurtzrock, 81 Misc. 3d 144(A) (App. Term. 2024) (same).
According to Newsday, Suffolk County later cancelled all hearings on VTL § 1174-a violations.
Newsday, Bus Camera Tickets Not Being Heard by Suffolk Traffic Court as Program Reviewed,
March 21, 2024, available at https://perma.cc/2LG9-H59L. Similarly, according to the Albany
Times Union, a Colonie Judge dismissed all VTL § 1174-a cases on his docket. Albany Times
Union, New York Appellate Division Rules Against School Bus Cameras, March 10, 2024.
31. After the Town became aware of the Croce decision, the Town and its Vendor
continued to issue Notices of Liability without evidence of a violation, and continued to include
within the Notices of Liability the false, sworn Specialist Certification.
32. That is, the Town continued to lie about the evidence it had even when the lie was
made explicitly known to them through the Croce opinion and other sources. The Town’s behavior
remained unchanged even though Suffolk County stopped holding hearings on the matter (which
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was reported in Newsday), and the Town’s behavior remained unchanged in response to this
lawsuit.
33. On information and belief, the Town and its Vendor were unable to effectively
implement a program for creating evidence packets sufficient to establish the elements of a claim
after the Town became aware of the Croce decision. Accordingly, effective May 1, 2024, the
legislature amended VTL § 1174-a to make it easier for the Town and others to issue Notices of
Liability. See Part AA of Chapter 56 of the New York Laws of 2024 (S. 8306—C), enacted on
May 1, 2024.
34. The Town therefore was on effective notice of the issues underlying Plaintiff’s
claim before Plaintiff’s claim could possible have arose, no later than September 2022, when the
plaintiff in Croce made put Suffolk and its vendor on notice; undoubtedly, defendants in Nassau
TPVA did the same.
35. The Court's decision in Croce also provided the Town with knowledge within a
reasonable time (about three months after the 90-day deadline had expired).
The Delay in Seeking Leave Would Not Substantially Prejudice the Municipal Entity in Its Ability
to Defend Against the Action
36. “[T]he mere passage of time normally will not constitute substantial prejudice in
the absence of some showing of actual injury.” Newcomb v. Middle Country Cent. Sch. Dist., 28
N.Y.3d 455, 466 (2016).
37. A late Notice of Claim in our case will not prejudice the Defendant. Plaintiff’s
claim is a generic one, as it alleges that the Town and its Vendor’s system does not collect evidence
of prima facie elements of a VTL § 1174-a claim.
38. Plaintiff’s claim will not depend on the facts and circumstances of his own Notice
of Liability but on the systemic inability of the system to generate the evidence necessary to impose
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a penalty, and the Town’s fraudulent claims it possessed such evidence. Plaintiff’s claim is one
out of tens of thousands of such claims, and the violations that Plaintiff alleges are not specific to
his claim but instead are generic in nature.
39. The Town itself was responsible for the unlawful issuance of the Notices. In any
event, the Town continued to issue the Notices even when it became aware that they were in
violation of law. Moreover, the Town knew about the allegations at least as soon as Plaintiff did,
as there was little or no delay between the time Plaintiff became aware of his claim and the time
he filed suit.
Conclusion
For the reasons described above, Plaintiff respectfully requests that the motion seeking an
Order:
a. for leave to have the Notice of Claim dated May 17, 2024 (Exhibit “A”)
deemed timely served upon the Town of Hempstead, nunc pro tunc; or, in
the alternative,
b. granting Plaintiff leave to file a late Notice of Claim; and
c. for such other and further relief which the Court deems just and proper.
Dated: May 23, 2024
/s Martin Bienstock
Martin Bienstock (No. 1018852)
BIENSTOCK PLLC
15 West 38 Street, Suite 628
New York, N.Y. 10018
(646) 693-2934
mbienstock@bienstockpllc.com
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CERTIFICATE OF WORD COUNT
Pursuant to 22 New York Codes, Rules and Regulations § 202.8-b, I certify that the
foregoing Bienstock Affirmation was prepared using Times New Roman 12-point typeface and
contains 2,254 words, excluding the items specified by this rule. This certificate was prepared in
reliance on the word-count function of the word processing system (Microsoft Word) used to
prepare the document.
Dated: May 23, 2024
Respectfully Submitted,
/s Martin Bienstock
Martin Bienstock (No. 1018852)
BIENSTOCK PLLC
15 West 38 Street, Suite 628
New York, N.Y. 10018
(646) 693-2934
mbienstock@bienstockpllc.com
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Preview
FILED: NASSAU COUNTY CLERK 05/27/2024 11:21 AM INDEX NO. 619279/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/27/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------------------------------------------------------------- X SERGEY KADINSKY, on behalf of himself and all other similarly situated, Index No: 619279/2023 Plaintiff -against- BIENSTOCK AFFIRMATION IN SUPPORT OF MOTION FOR TOWN OF HEMPSTEAD, LEAVE TO FILE LATE NOTICE OF CLAIM Defendant. ------------------------------------------------------------- X Martin Bienstock, an attorney duly admitted to practice before the Courts of the State of New York, affirms the truth of the following under penalties of law: 1. I am managing partner at the law firm of Bienstock PLLC, attorneys for Plaintiff herein. I am fully familiar with the facts and circumstances surrounding this matter as they relate to this motion. 2. This affirmation is submitted in support of the motion seeking an Order: a) for leave to have the Notice of Claim dated May 17, 2024 (Exhibit “A”) deemed timely served upon the Town of Hempstead, nunc pro tunc; or, in the alternative, b) granting Plaintiff leave to file a late Notice of Claim; and c) for such other and further relief which the Court deems just and proper. Background 3. Plaintiff has filed the within putative class action claim against the Town of Hempstead based inter alia on the Town’s unlawful issuance of Notices of Liability. Dkt. No. 2, 18. 4. The action alleges inter alia that the Town issued Notices of Liability without evidence that the prima facie elements of a violation had occurred. It further alleges that the Town included in the Notices a false sworn statement that sufficient evidence existed to conclude that a 1 of 9 FILED: NASSAU COUNTY CLERK 05/27/2024 11:21 AM INDEX NO. 619279/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/27/2024 violation had occurred, when no such evidence existed. The Amended Complaint also alleges that the Town procured court judgments through false affidavits asserting that there was evidence that a violation had occurred, when there was no evidence of prima facie elements of a violation. 5. Plaintiff has asserted claims for unjust enrichment, fraud, negligent misrepresentation, unlawful delegation, due process, equal protection, and other claims shown in the Amended Complaint, and seeks damages and declaratory relief on behalf of the class. 6. Plaintiff’s allegations are systemic and generic and do not depend on facts specific to his particular Notice of Liability. His complaints concern high-level actions taken by the Town and its agents in which the principal goal was to hide from Plaintiff the facts relevant to his claim. 7. The action is for the benefit of the public, and therefore no Notice of Claim should be required. The Town has argued that a Notice of Claim is required however. For the resolution of doubt, Plaintiff submits this motion seeking leave to file a late Notice of Claim. Standard 8. “The purpose of the notice of claim is to alert the municipality to the existence of the claim so that it can promptly investigate and preserve any relevant evidence before the passage of time renders such evidence unavailable or lessens its probative value.” Jaime v. City of New York, No. 15, 2024 WL 1200216, at *3 (N.Y. Mar. 21, 2024). 9. General Municipal Law § 50–e(5) permits a court, in its discretion, to extend the time for a Plaintiff to serve a notice of claim.” Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460–461 (2016). 10. In determining whether to grant leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether (1) the claimant demonstrated a reasonable excuse for the failure to timely serve the notice, (2) the municipal entity acquired actual knowledge 2 2 of 9 FILED: NASSAU COUNTY CLERK 05/27/2024 11:21 AM INDEX NO. 619279/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/27/2024 of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay in seeking leave would substantially prejudice the municipal entity in its ability to defend against the action. Id., 28 N.Y.3d at 463–464. 11. Even when a petitioner fails to establish a reasonable excuse for her delay in seeking leave to serve a late notice of claim, if “there is actual knowledge and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim.” Matter of Anghel v Town of Hempstead, 2024 NY Slip Op 00420 (Second Dept., January 31, 2024). 12. Each of the relevant factors supports Plaintiff’s application. In any event, Plainitff is alleging that the Town systematically, knowingly, and intentionally engaged in the behavior at issue, which was itself designed to hide from him the facts. In these circumstances, any late notice should be excused. Plaintiff has a Reasonable Excuse for Failing to Timely Serve the Notice. 13. Plaintiff received a Notice of Liability on May 18, 2023, which imposed liability of $250. 14. Plaintiff was unaware that the Notice, which included a false, sworn affirmation, was without legal basis. 15. Plaintiff therefore paid the assessed liability of $250 on June 1, 2023. 16. Months later, Plaintiff learned that requests made under the Freedom of Information Law (FOIL) had revealed that the Notice of Liability was baseless, fraudulent, and illegal, and that the Town did not have evidence that a violation had occurred. 17. By then, the 90-day deadline to file a Notice of Claim already had elapsed. 3 3 of 9 FILED: NASSAU COUNTY CLERK 05/27/2024 11:21 AM INDEX NO. 619279/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/27/2024 18. In those circumstances, the Plaintiff has a reasonable excuse for not serving the Notice of Claim within the statutory time frame. First, he became aware of the injury he sustained only after the 90-day deadline to file a Notice of Claim had expired. Matter of Dewey v Town of Colonie, 54 A.D.3d 1142, 1143 (3rd Dept. 2008) (Plaintiff has a reasonable excuse as he was “unaware of respondents' potential liability until they had the chance to review the materials that respondents provided to them in connection with their FOIL requests.”). 19. In addition, the Town itself was responsible for Plaintiff’s lack of knowledge concerning his claim, because the Town actively misled him, including through the use of a false, sworn affirmation within the Notice of Liability. Amended Complaint, Exh. D (Dkt. 22). The lack of knowledge excuses the late filing. Matter of Stevenson v Monroe County, 97 A.D.2d 969, 970 (4th Dept 1983), aff’d, 63 N.Y.2d 963 (1984) (“Where discovery of the facts underlying the claim is delayed due to no fault of the claimant, the delay in serving a notice of claim has been held to be justified”); Wemett v Onondaga County, 64 A.D.2d 1025, 1025 (4th Dept 1978) (“A just claim for damages . . . undiagnosed during the statutory 90-day period, should not be forfeited for failure to give notice”). The Town Acquired Actual Knowledge of the Essential Facts Constituting the Claim. 20. General Municipal Law § 50–e(5) provides that one factor favoring a late Notice of Claim is if “the municipal entity acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter.” Here, the Town became aware of the facts underlying the claim within the statutory period. 21. The gravamen of Plaintiff’s complaint is that the Town issued the Notices of Liability without evidence of prima facie elements of a violation. The Town knew that it lacked such evidence because a processor “trained in State law” was assigned to the matter. See Amended 4 4 of 9 FILED: NASSAU COUNTY CLERK 05/27/2024 11:21 AM INDEX NO. 619279/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/27/2024 Complaint, Ex. A (Dkt. 19), at 37. State law is clear in identifying the elements of a violation, and the processes for issuing a Notice clearly did not allow for the collection of evidence sufficient under State law. 22. In addition, by utilizing a form Notice of Liability containing a sworn statement that the sufficient evidence of a violation did exist, the Town undertook to know whether or not the elements of a violation were being met. 23. Accordingly, the Town knew that it lacked evidence of the prima facie elements of a claim, as Plaintiff alleged. Similarly, the Town knew that its Specialists did not review evidence other than recorded images, as it claimed in the Specialist Certificate, and that the reviewed information was not sufficient to conclude that a violation did exist. 24. Moreover, the nature of the reviews is described in the relevant contract and in the training materials that the Town had. Indeed, Plaintiff became aware of his claim through materials received as a result of a FOIL request. 25. Moreover, Plaintiff is alleging that the Town intentionally misled Plaintiff by knowingly issuing Notices of Liability without sufficient evidence, and intentionally including a falsified Specialist Certification within the Notices. Such intentionally misleading actions of necessity were known to the Town. 26. The Town also knew about Plaintiff’s claims because of court proceedings brought against the Town and against Suffolk County. 27. The Town of Hempstead uses the same vendor for managing its stop-arm program as does the County of Suffolk. Vehicle owners put the Town on notice by challenging the sufficiency of the Notices at hearings in Nassau and Suffolk. 5 5 of 9 FILED: NASSAU COUNTY CLERK 05/27/2024 11:21 AM INDEX NO. 619279/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/27/2024 28. For example, on September 21, 2022, the Plaintiff in the Croce matter put the County of Suffolk on notice that the Suffolk notices did not contain sufficient evidence to support a violation. Exhibit B, at 16 of 71, et seq. That Plaintiff pursued his case through appeal, which ultimately was decided in his favor. People v Croce, 81 Misc. 3d 31 (App Term 2023). 29. On November 30, 2023, the court held in favor of the Plaintiff in Croce. The court ruled that the generic evidence packet at issue, which was the same one used by the Town, did not include evidence of prima facie elements of the claim, and therefore would be dismissed. 30. After Appellate Term issued the Croce opinion, Suffolk County began regularly to consent to reversal of trial court VTL § 1174-a decisions on appeal. See, e.g., People v. Seidenberg, 81 Misc. 3d 144(A) (App. Term. 2024) (“Defendant appeals, and the People consent to a reversal in light of this court’s decision in People v Croce”); People v. Maxwell, 81 Misc. 3d 144(A) (App. Term. 2024) (same); People v. Kurtzrock, 81 Misc. 3d 144(A) (App. Term. 2024) (same). According to Newsday, Suffolk County later cancelled all hearings on VTL § 1174-a violations. Newsday, Bus Camera Tickets Not Being Heard by Suffolk Traffic Court as Program Reviewed, March 21, 2024, available at https://perma.cc/2LG9-H59L. Similarly, according to the Albany Times Union, a Colonie Judge dismissed all VTL § 1174-a cases on his docket. Albany Times Union, New York Appellate Division Rules Against School Bus Cameras, March 10, 2024. 31. After the Town became aware of the Croce decision, the Town and its Vendor continued to issue Notices of Liability without evidence of a violation, and continued to include within the Notices of Liability the false, sworn Specialist Certification. 32. That is, the Town continued to lie about the evidence it had even when the lie was made explicitly known to them through the Croce opinion and other sources. The Town’s behavior remained unchanged even though Suffolk County stopped holding hearings on the matter (which 6 6 of 9 FILED: NASSAU COUNTY CLERK 05/27/2024 11:21 AM INDEX NO. 619279/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/27/2024 was reported in Newsday), and the Town’s behavior remained unchanged in response to this lawsuit. 33. On information and belief, the Town and its Vendor were unable to effectively implement a program for creating evidence packets sufficient to establish the elements of a claim after the Town became aware of the Croce decision. Accordingly, effective May 1, 2024, the legislature amended VTL § 1174-a to make it easier for the Town and others to issue Notices of Liability. See Part AA of Chapter 56 of the New York Laws of 2024 (S. 8306—C), enacted on May 1, 2024. 34. The Town therefore was on effective notice of the issues underlying Plaintiff’s claim before Plaintiff’s claim could possible have arose, no later than September 2022, when the plaintiff in Croce made put Suffolk and its vendor on notice; undoubtedly, defendants in Nassau TPVA did the same. 35. The Court's decision in Croce also provided the Town with knowledge within a reasonable time (about three months after the 90-day deadline had expired). The Delay in Seeking Leave Would Not Substantially Prejudice the Municipal Entity in Its Ability to Defend Against the Action 36. “[T]he mere passage of time normally will not constitute substantial prejudice in the absence of some showing of actual injury.” Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466 (2016). 37. A late Notice of Claim in our case will not prejudice the Defendant. Plaintiff’s claim is a generic one, as it alleges that the Town and its Vendor’s system does not collect evidence of prima facie elements of a VTL § 1174-a claim. 38. Plaintiff’s claim will not depend on the facts and circumstances of his own Notice of Liability but on the systemic inability of the system to generate the evidence necessary to impose 7 7 of 9 FILED: NASSAU COUNTY CLERK 05/27/2024 11:21 AM INDEX NO. 619279/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/27/2024 a penalty, and the Town’s fraudulent claims it possessed such evidence. Plaintiff’s claim is one out of tens of thousands of such claims, and the violations that Plaintiff alleges are not specific to his claim but instead are generic in nature. 39. The Town itself was responsible for the unlawful issuance of the Notices. In any event, the Town continued to issue the Notices even when it became aware that they were in violation of law. Moreover, the Town knew about the allegations at least as soon as Plaintiff did, as there was little or no delay between the time Plaintiff became aware of his claim and the time he filed suit. Conclusion For the reasons described above, Plaintiff respectfully requests that the motion seeking an Order: a. for leave to have the Notice of Claim dated May 17, 2024 (Exhibit “A”) deemed timely served upon the Town of Hempstead, nunc pro tunc; or, in the alternative, b. granting Plaintiff leave to file a late Notice of Claim; and c. for such other and further relief which the Court deems just and proper. Dated: May 23, 2024 /s Martin Bienstock Martin Bienstock (No. 1018852) BIENSTOCK PLLC 15 West 38 Street, Suite 628 New York, N.Y. 10018 (646) 693-2934 mbienstock@bienstockpllc.com 8 8 of 9 FILED: NASSAU COUNTY CLERK 05/27/2024 11:21 AM INDEX NO. 619279/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/27/2024 CERTIFICATE OF WORD COUNT Pursuant to 22 New York Codes, Rules and Regulations § 202.8-b, I certify that the foregoing Bienstock Affirmation was prepared using Times New Roman 12-point typeface and contains 2,254 words, excluding the items specified by this rule. This certificate was prepared in reliance on the word-count function of the word processing system (Microsoft Word) used to prepare the document. Dated: May 23, 2024 Respectfully Submitted, /s Martin Bienstock Martin Bienstock (No. 1018852) BIENSTOCK PLLC 15 West 38 Street, Suite 628 New York, N.Y. 10018 (646) 693-2934 mbienstock@bienstockpllc.com 9 9 of 9