Preview
FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF YATES
---------------------------------------X
NANCY SKENE, Index No. 5051/2019
Petitioner,
REPLY AFFIRMATION
-against-
VILLAGE OF DUNDEE,
Respondent.
---------------------------------------X
Thomas J. Maimone, an attorney duly admitted to practice
in the Courts of this State, hereby affirms as true under the
penalties of perjury and states the following:
1. I am the member of the law firm of Maimone &
Associates PLLC, attorneys for the Petitioner, NANCY L. SKENE.
2. This Affirmation is made in reply to the Village of
Dundee’s opposition and in further support of the Petition.
3. The Village has posed a scattershot of several grounds
of opposition, all of which are illusory, as will be shown
below.
Location of the Property
4. The Village argues that the manner in which petitioner
identified the property is insufficient. The Notice of Claim
(Exhibit “B”) provides a street address, as well as a
description of intersecting streets. The area of the property
where petitioner slipped and fell is also described in Section 3
of the Notice of Claim. The nature of the defect is described.
1 of 8
FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019
5. Prior to filing the Notice of Claim, your affirmant
sent an email to the Village Clerk indicating that a notice of
claim was imminent and containing a picture along with a verbal
description (Exhibit “A”). That picture, along with the address
information given in the email, would allow anyone to go to the
scene and see exactly where the patch of ice was based upon the
existence of a puddle in the picture in the exact location of
the patch of ice. The picture contains a view of the sidewalk,
signs on telephone poles, a building, and a prominent gas
station sign, all of which would easily permit someone to go to
the exact location where the accident happened.
6. Plaintiffs are required to specify a location to
enable a municipality to have a meaningful investigation of the
accident. Morales v. NYC Housing Authority, 178 A.D.2d 143, 576
N.Y.S.2d 866 (1st Dept. 1991) The descriptions provided in the
email and the Notice of Claim are ample since they would lead a
person right to the place where the ice formed.
7. Even if a notice of claim has an improper name of a
location, but otherwise through pictures and other descriptions
allows an investigation to take place, the Notice will not be
deemed invalid for the improper name. Sass v. County of
Westchester, 54 Misc.3d 1208(A), 52 N.Y.S.3d 248 (Sup. Ct.,
Westchester Cty. 2017)
- 2 -
2 of 8
FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019
8. The Village’s reliance on Caselli v. City of New York,
105 A.D.2d 251, 483 N.Y.S.2d 401 (2nd Dept. 1984) is entirely
misplaced. The Caselli Notice of Claim described the location
of the defect as two intersecting streets, with no further
delineation. It is understandable that the Second Department
deemed that insufficient. The Notice of Claim at bar is much
more specific, providing the street address of the abutting
property and the name of the shop on that property, and a
description of the location of the defect by reference to the
particular road and the section abutting portion of the
property. Further amplification is contained in the email sent
to the Village with a picture attached. The picture accurately
fixes the location of the puddle that froze by showing a puddle
in relation to unmistakable landmarks including a sewer grate, a
portion of the sidewalk, various immovable objects such as
telephone poles, signage on poles, a building, etc. The
location information provided to the Village was much more
specific than a vague reference to an intersection that the
Caselli Court found offensive.
9. The Village’s reference to Johnson v. New York City
Transit Authority, 181 A.D.2d 619, 581 N.Y.S.2d 339 (1st Dept.
1992) is also unavailing. Plaintiff served a late Notice of
Claim and never mentioned a defective handrail in a subway
stairway. Plaintiff did not seek leave to file a late claim,
- 3 -
3 of 8
FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019
and spoke of the handrail only when opposing the NYCTA’s Motion
to Dismiss made four months later. The defect had already been
repaired. That sequence of events clearly inhibited NYCTA’s
ability to investigate the claim, unlike in this case where the
location and manner of injury is clearly set forth and the
conditions remained the same.
10. The Village also cites Brown v. City of New York, 95
N.Y.2d 389, 718 N.Y.S.2d 4 (2000) which, paradoxically, supports
Petitioner’s position. Plaintiff claimed a sidewalk and curb
defect in his Notice of Claim, but circles on attached
photographs focused on the curb. At trial, plaintiff testified
that he tripped on the sidewalk, and denied tripping on the
curb. The trial court set aside a plaintiff’s jury verdict and
dismissed the case based upon defective Notice of Claim. The
jury verdict was reinstated. The Court of Appeals observed
that:
A Notice of Claim serves an important public
purpose, enabling authorities to promptly
investigate the site of an alleged accident and
assess municipal exposure to liability.
Plaintiff’s Notice plainly satisfied that
purpose.
95 N.Y.2d at 394. Accord, O’Brien v. City of Syracuse, 54
N.Y.2d 353, 358, 445 N.Y.S.2d 687, 689 (1981); Sinuk v.
City of New York, 43 Misc.3d 1240, 990 N.Y.S2d 440 (Sup.
Ct. Bronx Cty. 2014).
- 4 -
4 of 8
FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019
11. At bar, sufficient information was provided in the
email and the Notice of Claim to satisfy that purpose. The
delay was brief – email was sent 27 days after the 90-day period
for filing a notice of claim. The same conditions existed when
the email was sent, followed by the Notice of Claim, as were
present on the ninetieth day after the accident.
Respondent’s Incapacity
12. Annexed hereto as Exhibit “E” is an x-ray image of the
plate installed on petitioner’s wrist and forearm as a result of
this accident. Petitioner does not have to show complete
incapacity to be sufficiently impaired to excuse a delay of
filing a notice of claim. Cole v State, 64 A.D.2d 1023, 409
N.Y.S.2d 306 (4th Dept. 1978) She was clearly in a tremendous
amount of pain, needed physician’s services, hospital services,
and therapy services all of which took time, energy and
attention. Further, such an injury requires use of mind-altering
pain medication.
13. This is not a trifling injury. While petitioner was
not completely incapacitated, when faced with this type of
severe injury and pain, a person’s attention is diverted. That
is why the disability does not have to be a complete and total
disability. Very little disability is required where the
municipality cannot show prejudice.
- 5 -
5 of 8
FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019
Prejudice
14. The Village contends that it is prejudiced by the
delay. However, the Village has not shown any real prejudice.
There is no change in the condition in the several weeks that
passed from the conclusion of the ninety-day period until the
Village received the email and a few days later, the Notice of
Claim. Of course, the Notice of Claim would be invalid unless
this Court permits the late service. Nevertheless, it alerted
the Village in time to investigate. As noted above, having the
opportunity to investigate at an early juncture is the hallmark.
The depression in the surface had not been repaired and, upon
information and belief, is still not repaired.
15. The Court of Appeals instructed litigants in 2016 that
where, as in the case at bar, a Petitioner makes an initial
showing or plausible argument that supports leave to file a late
Notice, “the public corporation must respond with a
particularized evidentiary showing that the corporation will be
substantially prejudiced if the late notice is allowed.” Newcomb
v. Middle Country Cent. School Dist., 28 N.Y.3d 455, 467, 45
N.Y.S.2d 895, 901 (2016)(emphasis added). This requirement of a
particularized evidentiary showing is not satisfied by
“speculation and inference.” 28 N.Y.3d at 467, 45 N.Y.S.2d at
902.
16. The Village did not meet the evidentiary requirement.
- 6 -
6 of 8
FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019
It produced no evidence whatsoever, much less a “particularized
evidentiary showing” as Newcomb requires. No change in the
physical conditions was proven. No loss of records or witnesses
has been demonstrated. The opposing Affirmation is merely
attorney speculation and inference, not evidence of any sort.
Conclusion
17. The location that was provided to the village in the
email and the Notice of Claim was precise and accurate, and
could easily lead anyone from the Village to make an
investigation. The Village has demonstrated no prejudice that
would prevent it from fully defending on the merits. The delay
was brief (27 days as to the email notice). Petitioner’s
partial disability was sufficient to excuse the delay,
especially in the absence of prejudice to the municipality.
WHEREFORE, it is respectfully requested that the Court
make an Order granting leave to file a late Notice of Claim,
declaring that the Notice of Claim served on the Village of
Dundee on July 22 be deemed timely served, nunc pro tunc, and
granting such other and further relief as this Court deems just
and proper.
Dated: Port Washington, New York
September 13, 2019
BY: /s/Thomas J. Maimone
THOMAS J. MAIMONE
- 7 -
7 of 8
FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019
Served upon all counsel of record on September 13, 2019 via the
electronic filing system of the Supreme Court of the State of
New York.
- 8 -
8 of 8
Preview
FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF YATES ---------------------------------------X NANCY SKENE, Index No. 5051/2019 Petitioner, REPLY AFFIRMATION -against- VILLAGE OF DUNDEE, Respondent. ---------------------------------------X Thomas J. Maimone, an attorney duly admitted to practice in the Courts of this State, hereby affirms as true under the penalties of perjury and states the following: 1. I am the member of the law firm of Maimone & Associates PLLC, attorneys for the Petitioner, NANCY L. SKENE. 2. This Affirmation is made in reply to the Village of Dundee’s opposition and in further support of the Petition. 3. The Village has posed a scattershot of several grounds of opposition, all of which are illusory, as will be shown below. Location of the Property 4. The Village argues that the manner in which petitioner identified the property is insufficient. The Notice of Claim (Exhibit “B”) provides a street address, as well as a description of intersecting streets. The area of the property where petitioner slipped and fell is also described in Section 3 of the Notice of Claim. The nature of the defect is described. 1 of 8 FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019 5. Prior to filing the Notice of Claim, your affirmant sent an email to the Village Clerk indicating that a notice of claim was imminent and containing a picture along with a verbal description (Exhibit “A”). That picture, along with the address information given in the email, would allow anyone to go to the scene and see exactly where the patch of ice was based upon the existence of a puddle in the picture in the exact location of the patch of ice. The picture contains a view of the sidewalk, signs on telephone poles, a building, and a prominent gas station sign, all of which would easily permit someone to go to the exact location where the accident happened. 6. Plaintiffs are required to specify a location to enable a municipality to have a meaningful investigation of the accident. Morales v. NYC Housing Authority, 178 A.D.2d 143, 576 N.Y.S.2d 866 (1st Dept. 1991) The descriptions provided in the email and the Notice of Claim are ample since they would lead a person right to the place where the ice formed. 7. Even if a notice of claim has an improper name of a location, but otherwise through pictures and other descriptions allows an investigation to take place, the Notice will not be deemed invalid for the improper name. Sass v. County of Westchester, 54 Misc.3d 1208(A), 52 N.Y.S.3d 248 (Sup. Ct., Westchester Cty. 2017) - 2 - 2 of 8 FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019 8. The Village’s reliance on Caselli v. City of New York, 105 A.D.2d 251, 483 N.Y.S.2d 401 (2nd Dept. 1984) is entirely misplaced. The Caselli Notice of Claim described the location of the defect as two intersecting streets, with no further delineation. It is understandable that the Second Department deemed that insufficient. The Notice of Claim at bar is much more specific, providing the street address of the abutting property and the name of the shop on that property, and a description of the location of the defect by reference to the particular road and the section abutting portion of the property. Further amplification is contained in the email sent to the Village with a picture attached. The picture accurately fixes the location of the puddle that froze by showing a puddle in relation to unmistakable landmarks including a sewer grate, a portion of the sidewalk, various immovable objects such as telephone poles, signage on poles, a building, etc. The location information provided to the Village was much more specific than a vague reference to an intersection that the Caselli Court found offensive. 9. The Village’s reference to Johnson v. New York City Transit Authority, 181 A.D.2d 619, 581 N.Y.S.2d 339 (1st Dept. 1992) is also unavailing. Plaintiff served a late Notice of Claim and never mentioned a defective handrail in a subway stairway. Plaintiff did not seek leave to file a late claim, - 3 - 3 of 8 FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019 and spoke of the handrail only when opposing the NYCTA’s Motion to Dismiss made four months later. The defect had already been repaired. That sequence of events clearly inhibited NYCTA’s ability to investigate the claim, unlike in this case where the location and manner of injury is clearly set forth and the conditions remained the same. 10. The Village also cites Brown v. City of New York, 95 N.Y.2d 389, 718 N.Y.S.2d 4 (2000) which, paradoxically, supports Petitioner’s position. Plaintiff claimed a sidewalk and curb defect in his Notice of Claim, but circles on attached photographs focused on the curb. At trial, plaintiff testified that he tripped on the sidewalk, and denied tripping on the curb. The trial court set aside a plaintiff’s jury verdict and dismissed the case based upon defective Notice of Claim. The jury verdict was reinstated. The Court of Appeals observed that: A Notice of Claim serves an important public purpose, enabling authorities to promptly investigate the site of an alleged accident and assess municipal exposure to liability. Plaintiff’s Notice plainly satisfied that purpose. 95 N.Y.2d at 394. Accord, O’Brien v. City of Syracuse, 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 689 (1981); Sinuk v. City of New York, 43 Misc.3d 1240, 990 N.Y.S2d 440 (Sup. Ct. Bronx Cty. 2014). - 4 - 4 of 8 FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019 11. At bar, sufficient information was provided in the email and the Notice of Claim to satisfy that purpose. The delay was brief – email was sent 27 days after the 90-day period for filing a notice of claim. The same conditions existed when the email was sent, followed by the Notice of Claim, as were present on the ninetieth day after the accident. Respondent’s Incapacity 12. Annexed hereto as Exhibit “E” is an x-ray image of the plate installed on petitioner’s wrist and forearm as a result of this accident. Petitioner does not have to show complete incapacity to be sufficiently impaired to excuse a delay of filing a notice of claim. Cole v State, 64 A.D.2d 1023, 409 N.Y.S.2d 306 (4th Dept. 1978) She was clearly in a tremendous amount of pain, needed physician’s services, hospital services, and therapy services all of which took time, energy and attention. Further, such an injury requires use of mind-altering pain medication. 13. This is not a trifling injury. While petitioner was not completely incapacitated, when faced with this type of severe injury and pain, a person’s attention is diverted. That is why the disability does not have to be a complete and total disability. Very little disability is required where the municipality cannot show prejudice. - 5 - 5 of 8 FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019 Prejudice 14. The Village contends that it is prejudiced by the delay. However, the Village has not shown any real prejudice. There is no change in the condition in the several weeks that passed from the conclusion of the ninety-day period until the Village received the email and a few days later, the Notice of Claim. Of course, the Notice of Claim would be invalid unless this Court permits the late service. Nevertheless, it alerted the Village in time to investigate. As noted above, having the opportunity to investigate at an early juncture is the hallmark. The depression in the surface had not been repaired and, upon information and belief, is still not repaired. 15. The Court of Appeals instructed litigants in 2016 that where, as in the case at bar, a Petitioner makes an initial showing or plausible argument that supports leave to file a late Notice, “the public corporation must respond with a particularized evidentiary showing that the corporation will be substantially prejudiced if the late notice is allowed.” Newcomb v. Middle Country Cent. School Dist., 28 N.Y.3d 455, 467, 45 N.Y.S.2d 895, 901 (2016)(emphasis added). This requirement of a particularized evidentiary showing is not satisfied by “speculation and inference.” 28 N.Y.3d at 467, 45 N.Y.S.2d at 902. 16. The Village did not meet the evidentiary requirement. - 6 - 6 of 8 FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019 It produced no evidence whatsoever, much less a “particularized evidentiary showing” as Newcomb requires. No change in the physical conditions was proven. No loss of records or witnesses has been demonstrated. The opposing Affirmation is merely attorney speculation and inference, not evidence of any sort. Conclusion 17. The location that was provided to the village in the email and the Notice of Claim was precise and accurate, and could easily lead anyone from the Village to make an investigation. The Village has demonstrated no prejudice that would prevent it from fully defending on the merits. The delay was brief (27 days as to the email notice). Petitioner’s partial disability was sufficient to excuse the delay, especially in the absence of prejudice to the municipality. WHEREFORE, it is respectfully requested that the Court make an Order granting leave to file a late Notice of Claim, declaring that the Notice of Claim served on the Village of Dundee on July 22 be deemed timely served, nunc pro tunc, and granting such other and further relief as this Court deems just and proper. Dated: Port Washington, New York September 13, 2019 BY: /s/Thomas J. Maimone THOMAS J. MAIMONE - 7 - 7 of 8 FILED: YATES COUNTY CLERK 09/13/2019 08:25 PM INDEX NO. 20195051 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/13/2019 Served upon all counsel of record on September 13, 2019 via the electronic filing system of the Supreme Court of the State of New York. - 8 - 8 of 8