Preview
FILED: NEW YORK COUNTY CLERK 09/25/2015 02:02 PM INDEX NO. 158103/2015
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 09/25/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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In the Matter of the Application of Index No. 158103/2015
DEBRA HARTMANN,
Petitioner, REPLY AFFIRMATION
- against -
HUDSON RIVER PARK TRUST,
Respondent,
for leave to serve a late notice of claim pursuant to
General Municipal Law § 50-e.
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DAVID TOLCHIN, an attorney admitted to practice law in the State of New
York, affirms the following to be true subject to the penalties of perjury:
1. I am an associate of Jaroslawicz & Jaros LLC, counsel for the
petitioner, Debra Hartmann. I submit this reply affirmation in further support of
petitioner’s application for an order:
a) PERMITTING petitioner to serve a late Notice of Claim related to
her January 26, 2015 slip and fall accident;
b) DEEMING the Notice of Claim that was served on July 22, 2015
(Petition Exh. A) as being timely served, nunc pro tunc, and extending the time to serve
the Notice of Claim accordingly; and
c) AWARDING petitioner such other and further relief as is just and
proper under the circumstances.
The Trust Concedes Petitioner’s Excuse For Not Serving Sooner
2. Petitioner’s explanation for the delay in bringing a claim against the
respondent Hudson River Park Trust (“Trust”) is conceded by the respondent Trust:
petitioner had no reason to expect that the Trust was involved in the care and
maintenance of the location of the accident. When she found out—based upon
statements made by Chelsea Piers’ representative—she immediately sought leave to
claim against the Trust.
3. Petitioner’s explanation need not be strong—and it is fairly strong
here. A failure to set forth a reasonable excuse is not fatal to the application if the
municipality had actual knowledge within a reasonable time after the accident, and
there is an absence of prejudice. See Richardson v. New York City Trans. Auth., 210 A.D.2d
38 (1st Dep’t 1994); Rivera-Guallpa v. County of Nassau, 40 A.D.3d 1001, 1002 (2d Dep’t
2007); Nardi v. County of Westchester, 18 A.D.3d 521, 522 (2d Dep’t 2005); Hendershot v.
Westchester Med. Ctr., 8 A.D.3d 381, 382 (2d Dep’t 2004); McMillan v. City of NY, 279
A.D.2d 280 (1st Dep’t 2001). And “[t]he mere passage of time is not alone a sufficient
basis to deny leave to file a late Notice of Claim.” Matter of Renea Holmes v. City of N.Y.,
189 A.D.2d 676 (1st Dep’t 1993).
4. Here, the Trust was put on notice of the claim within 90 days after
the incident or a reasonable time thereafter. Indeed, petitioner filed a notice of claim
setting forth the particulars of the claim on July 22, 2015 (Petition, Exh. A).
5. The accident was also immediately investigated. Although the
contemporaneous accident report was prepared by petitioner’s employer, MaBSTOA,
rather than the Trust, it is hard to imagine how the Trust could have investigated the
-2-
accident any better than MaBSTOA did, and the Trust does not specify what it would
have done differently. Accordingly, the Trust cannot have been substantially
prejudiced, if it was prejudiced at all.
6. The Trust’s conclusory assertion of prejudice is wholly empty in
light of its failure to submit any evidence regarding the extent of the investigation it
would have undertaken if it had received notice of the accident within 90 days; and
what more it would have done than MaBSTOA actually did. See Speed v. A. Holly
Patterson Extended Care Facility, 10 A.D.3d 400, 401 (2d Dep’t 2004). Indeed, because this
was a transitory condition, as snow and ice cases usually are—the Trust would not be in
any worse position if petitioner had served the Notice of Claim on the 89th day after the
accident, months after the snow and ice would have long melted away. The Trust thus
fails to submit any evidence to suggest that the delay prevented it from obtaining
information that would have otherwise been available. See Gibbs v. City of N.Y., 22
A.D.3d 717, 719-20 (2d Dep’t 2005).
7. The fact remains that the accident was thoroughly investigated by
MaBSOTA from an adversarial perspective, and can therefore be relied upon as
authentic and accurate. Indeed, both MaBSTOA—which might have to benefits to
petitioner, and the respondent, who could conceivably be held liable to petitioner—are
both motivated to investigate and document the accident if for no other reason than to
limit their exposure to a claim by the petitioner.
8. Petitioner’s claim is, of course, not “patently” meritless—see
Catherine G. v. County of Essex, 3 N.Y.3d 175 (2004)—at least, not according to Chelsea
Piers, and before discovery has had a chance to sort it out.
-3-
9. It is possible that Chelesa Piers’s representative has sent petitioner
on a wild goose chase in directing her to the Trust’s doorstep. We cannot really know
until after discovery. There have been numerous litigations between the Trust and
Chelsea Piers. See, e.g., Chelsea Piers LP v. Hudson River Park Trust, NY County Index No.
653143/2011; Berman v. City of N.Y., Hudson River Park Trust and Chelsea Piers, LP, NY
County Index 156981/2014. Perhaps Ms. Hartmann’s case is just providing the next
battleground for those two heavyweights to duke out which of the two is responsible
for what. Without discovery, it may be too soon to tell.
10. But those issues are all beside the point. Since the ultimate merits of
the claim should not be considered in evaluating whether to allow service of the notice
of claim. Chambers v. Nassau County Health Care Corp., 50 A.D.3d 1134, 1135 (2d Dep’t
2008).
If the Court Denies the Motion, It Should Clarify The Basis For
the Denial
11. The Court should grant the petition.
12. However, if the Court is inclined to deny the petition it should
make clear whether it is denying the petition on the merits, or as to the particular
General Municipal Law § 50-e(5) factors.
WHEREFORE, it is respectfully requested that the Court grant the within
verified petition and enter a judgment:
a) PERMITTING petitioner to serve a late Notice of Claim related to
her January 26, 2015 slip and fall accident;
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b) DEEMING the Notice of Claim that was served on July 22, 2015
(Petition Exh. A) as being timely served, nunc pro tunc, and extending the time to serve
the Notice of Claim accordingly; and
c) AWARDING petitioner such other and further relief as is just and
proper under the circumstances.
Dated: September 25, 2015
JAROSLAWICZ & JAROS PLLC
Attorneys for the petitioner
by:
David Tolchin
225 Broadway, 24th Floor
New York, New York 10007
(212) 227-2780
dtolchin@lawjaros.com
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Preview
FILED: NEW YORK COUNTY CLERK 09/25/2015 02:02 PM INDEX NO. 158103/2015 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 09/25/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------- X In the Matter of the Application of Index No. 158103/2015 DEBRA HARTMANN, Petitioner, REPLY AFFIRMATION - against - HUDSON RIVER PARK TRUST, Respondent, for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e. -------------------------------------------------------------------- X DAVID TOLCHIN, an attorney admitted to practice law in the State of New York, affirms the following to be true subject to the penalties of perjury: 1. I am an associate of Jaroslawicz & Jaros LLC, counsel for the petitioner, Debra Hartmann. I submit this reply affirmation in further support of petitioner’s application for an order: a) PERMITTING petitioner to serve a late Notice of Claim related to her January 26, 2015 slip and fall accident; b) DEEMING the Notice of Claim that was served on July 22, 2015 (Petition Exh. A) as being timely served, nunc pro tunc, and extending the time to serve the Notice of Claim accordingly; and c) AWARDING petitioner such other and further relief as is just and proper under the circumstances. The Trust Concedes Petitioner’s Excuse For Not Serving Sooner 2. Petitioner’s explanation for the delay in bringing a claim against the respondent Hudson River Park Trust (“Trust”) is conceded by the respondent Trust: petitioner had no reason to expect that the Trust was involved in the care and maintenance of the location of the accident. When she found out—based upon statements made by Chelsea Piers’ representative—she immediately sought leave to claim against the Trust. 3. Petitioner’s explanation need not be strong—and it is fairly strong here. A failure to set forth a reasonable excuse is not fatal to the application if the municipality had actual knowledge within a reasonable time after the accident, and there is an absence of prejudice. See Richardson v. New York City Trans. Auth., 210 A.D.2d 38 (1st Dep’t 1994); Rivera-Guallpa v. County of Nassau, 40 A.D.3d 1001, 1002 (2d Dep’t 2007); Nardi v. County of Westchester, 18 A.D.3d 521, 522 (2d Dep’t 2005); Hendershot v. Westchester Med. Ctr., 8 A.D.3d 381, 382 (2d Dep’t 2004); McMillan v. City of NY, 279 A.D.2d 280 (1st Dep’t 2001). And “[t]he mere passage of time is not alone a sufficient basis to deny leave to file a late Notice of Claim.” Matter of Renea Holmes v. City of N.Y., 189 A.D.2d 676 (1st Dep’t 1993). 4. Here, the Trust was put on notice of the claim within 90 days after the incident or a reasonable time thereafter. Indeed, petitioner filed a notice of claim setting forth the particulars of the claim on July 22, 2015 (Petition, Exh. A). 5. The accident was also immediately investigated. Although the contemporaneous accident report was prepared by petitioner’s employer, MaBSTOA, rather than the Trust, it is hard to imagine how the Trust could have investigated the -2- accident any better than MaBSTOA did, and the Trust does not specify what it would have done differently. Accordingly, the Trust cannot have been substantially prejudiced, if it was prejudiced at all. 6. The Trust’s conclusory assertion of prejudice is wholly empty in light of its failure to submit any evidence regarding the extent of the investigation it would have undertaken if it had received notice of the accident within 90 days; and what more it would have done than MaBSTOA actually did. See Speed v. A. Holly Patterson Extended Care Facility, 10 A.D.3d 400, 401 (2d Dep’t 2004). Indeed, because this was a transitory condition, as snow and ice cases usually are—the Trust would not be in any worse position if petitioner had served the Notice of Claim on the 89th day after the accident, months after the snow and ice would have long melted away. The Trust thus fails to submit any evidence to suggest that the delay prevented it from obtaining information that would have otherwise been available. See Gibbs v. City of N.Y., 22 A.D.3d 717, 719-20 (2d Dep’t 2005). 7. The fact remains that the accident was thoroughly investigated by MaBSOTA from an adversarial perspective, and can therefore be relied upon as authentic and accurate. Indeed, both MaBSTOA—which might have to benefits to petitioner, and the respondent, who could conceivably be held liable to petitioner—are both motivated to investigate and document the accident if for no other reason than to limit their exposure to a claim by the petitioner. 8. Petitioner’s claim is, of course, not “patently” meritless—see Catherine G. v. County of Essex, 3 N.Y.3d 175 (2004)—at least, not according to Chelsea Piers, and before discovery has had a chance to sort it out. -3- 9. It is possible that Chelesa Piers’s representative has sent petitioner on a wild goose chase in directing her to the Trust’s doorstep. We cannot really know until after discovery. There have been numerous litigations between the Trust and Chelsea Piers. See, e.g., Chelsea Piers LP v. Hudson River Park Trust, NY County Index No. 653143/2011; Berman v. City of N.Y., Hudson River Park Trust and Chelsea Piers, LP, NY County Index 156981/2014. Perhaps Ms. Hartmann’s case is just providing the next battleground for those two heavyweights to duke out which of the two is responsible for what. Without discovery, it may be too soon to tell. 10. But those issues are all beside the point. Since the ultimate merits of the claim should not be considered in evaluating whether to allow service of the notice of claim. Chambers v. Nassau County Health Care Corp., 50 A.D.3d 1134, 1135 (2d Dep’t 2008). If the Court Denies the Motion, It Should Clarify The Basis For the Denial 11. The Court should grant the petition. 12. However, if the Court is inclined to deny the petition it should make clear whether it is denying the petition on the merits, or as to the particular General Municipal Law § 50-e(5) factors. WHEREFORE, it is respectfully requested that the Court grant the within verified petition and enter a judgment: a) PERMITTING petitioner to serve a late Notice of Claim related to her January 26, 2015 slip and fall accident; -4- b) DEEMING the Notice of Claim that was served on July 22, 2015 (Petition Exh. A) as being timely served, nunc pro tunc, and extending the time to serve the Notice of Claim accordingly; and c) AWARDING petitioner such other and further relief as is just and proper under the circumstances. Dated: September 25, 2015 JAROSLAWICZ & JAROS PLLC Attorneys for the petitioner by: David Tolchin 225 Broadway, 24th Floor New York, New York 10007 (212) 227-2780 dtolchin@lawjaros.com -5-