Preview
FILED: ERIE COUNTY CLERK 04/20/2018 02:46 PM INDEX NO. 803346/2018
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 04/20/2018
STATE OF NEW YORK
SUPREME COURT :COUNTY OF ERIE
REPLY
AFFIRMATION
LEWIS ARGIRO
Index No. 803346/2018
Petitioner,
v.
CITY OF BUFFALO
BUFFAL O PUBLIC S CHOOLS
BUFFALO BOARD OF EDUCATION
Respondents.
Anne M. Wheeler, Esq., an attorney duly admitted to practice law in the State of New York,
affirms the following under penalty of perjury:
1) I am an attorney at law duly licensed to practice in the State of New York and am a
partner in the law firm of Dolce Panepinto, P.C., attorneys for the Petitioner, LEWIS ARGIRO. As
such, I am fully familiar with the facts and circumstances herein.
2) This reply affirmation is submitted in further support of the Petitioner's application
for leave to file and serve a late notice of claim pursuant to General Municipal Law § 50(e)(5).
3) As fully set forth in the plaintiff's moving papers, when considering an application
for leave to serve a late notice of claim, the Courts may considered a number of factors including
whether the respondent had actual or constructive notice of the essential facts constituting the claim
within the ninety (90) day statutory period or a reasonable time thereafter, whether the delay in
serving the notice of claim would substantially prejudice the respondent in maintaining a defense,
and excuse for delay in serving the notice of claim. General Municipal Law § 50(e)(5); Norstrand
~hi fh 9, 9AD. d Il 944 hD 9999; C \ . f h*,dhA D. d
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1095, 1095-1096 (2d Dep't 2011). The presence or absence of any single factor is not considered
Employees' ees'
dispositive. See Bay Terrace Co-op. . Section IV, Inc. v. New York State Em lo Retirement
System Policemen's and Firemen's Retirement System, 55 N.Y.2d 979 (1982).
4) As the respondents seems to acknowledge, the case law favors assigning more
significant weight to whether respondents had notice of the subject incident and whether there is
O' "O' Affidavit"
prejudice. S_ee Affidavit of Kevin M O'Neil (hereinafter "O'Neill Affidavit") at ¶¶ 4-6, 16.
5) With respect to notice, in the instant case, the respondents entered into a contract with
Savarino Companies to act as their agent/ contractor with respect to the subject construction project.
Savarino Companies, in turn, subcontracted with the plaintiff's employer WBE Walls & Ceilings
to perform certain portions of the construction work. S_e.e Subcontract Agreement, attached hereto I
- 204"
as Exhibit A. That subcontract agreement identifies "Layfayette High School BPS as the
t
"owner"
(see Exhibit A at page 1) and requires that "[a]ll Subcontractor employees shall be
instructed to report any work related accidents immediately. Subcontractor's representative will
report."
investigate these accident immediately and provide Contractor with a copy of the incident
See Exhibit A, Section 7.4( c),at page 7.
6) Consistent with the requirements of the contract, it isundisputed that the plaintiff
immediately reported the details of the incident to his employer on the date of the incident, as
reflected in the WBE Walls & Ceiling Accident Report. See Plaintiff's Moving Papers at Exhibit
respondents'
D. As per the contract requirements, the agent, Savarino Companies, would have been
provided with a copy of that Accident Report at that time.
7) Given the fact that the plaintiff reported the incident on the day that itoccurred, that
his employer created an Accident Report and that the Accident Report ostensibly was submitted to
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the agent of the respondents pursuant to contractual requirements, notice of the incident within the
90-day time frame the can be imputed to the respondents.
O'
8) Moreover, and despite defendant's suggestion to the contrary (see O'Neill Aff at
¶¶l 5-21) the Accident Report contains sufficient to details to adequately put the respondents on
notice of the essential facts that support the claim. Indeed, what the statute requires is consideration
claim"
of whether the municipality "acquired actual knowledge ofthe essential facts constituting the
See General Municipal Law § 50(e)(5). The Courts have interpreted that to mean "knowledge of the
facts that underlie the legal theory or theories on which liabilityispredicated in the [proposed] notice
claim."
of Troy v, Town of Hyde Park, 63 A.D.3d 913, 914 (2d Dept 2009). The municipality
themselves."
"need not have specific notice of the theory or theories Id.
9) By design, the Notice of Claim standard is not stringent: "[t]he Legislature did not
intend that the claimant have the additional burden of pleading causes of action and legal theories,
proper forthe pleadings, in the notice of claim, which must be filed within 90 days of the occurrence.
[This requirement] was not meant as a sword to cut down honest claims, but merely as a shield to
ones."
protect [public entities] against spurious DeLeonibus v. Scognamillo, 183 A.D.2d 697, 698
(2d Dept 1992) citing Schwartz v. City of New York, 250 N.Y. 332 (1929)¡ see also Feldman v.
Finkelstein & Partners, LLP, 39 Misc.3d 1222(A)(N.Y. Sup Ct 2013) . "[T]he plain purpose of
statutes requiring pre-litigation notice to municipalities is to guard them against imposition by
requiring notice of the circumstances . .. upon which a claim for damages is made, so that its
authorities may be in a position to investigate the facts as to time and place, and decide whether the
litigation."
case is one for settlement or Rosenbaum v. City of New York, 8 N.Y.3d 1 (2006).
Accordingly, the test for establishing the sufficiency of the information provided to the municipality
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is"whether [the notice] includes information sufficient to enable cityto investigate and nothing more
required."
may be Brown v. City of New York, 95 N.Y.2d 389, 393 (2000).
10) The Accident Report concerning the subject incident contains sufficient details of the
essential facts underlying the incident that provide an basis for liability under the Labor Law statutes,
and further details that the plaintiff sustained injuries as a result. See Accident Report. Specifically,
3'
the Accident Report documents that the plaintiff was "climbing up the baker scaffold and about
up on the scaffold when the wheel fellinto a new drain hole in the floor causing Baker scaffold to
of"
overturn. Resulting in scaffold falling on top plaintiff. Id. At that time, the plaintiff was
experiencing left hip pain and accordingly the Accident Report documented that he had a "sore left
hip."
Id.
11) As indicated in the Proposed Notice of Claim attached to the plaintiff's moving
papers, the plaintiff is alleging that the circumstances that gave rise to his incident constitute
violations Sections 200, 240(1), & 241(6) of the New York State Labor Law. Those statutes require
owners, such as respondents, to provide proper protection to construction workers, and specifically
require that scaffolding provided for elevation-related construction work be properly constructed,
.placed and operated. The facts set forth in the subject Accident Report clearly substantiate a
violation of those Labor Law statute. Those the facts set forth were clearly sufficient for the
respondents to investigate the claim and determine that itmay have liabilityunder the statutes that
the plaintiff is claiming were violated.
respondents'
12) Accordingly, despite the position to the contrary, the plaintiff
respectfully submits that the respondents were on actual and adequate notice of the facts underlying
the subject claim.
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13) The fact the plaintiff gave notice of,and documented, his incident on the same day
that itoccurred bears directly on the issue of whether the respondents are substantially prejudiced
by the late filing of the notice of claim. The claimant's immediate reporting of the incident provided
the opportunity for the accident scene to be investigated contemporaneous with that occurrence.
O'
14) As the respondents seem to concede (see O'Neill Aff at ¶41), absent this
contemporaneous notice, an investigation of the precise conditions resulting in the claimant incident
would have been difficult given the transient nature of the condition that resulted in the incident.
Indeed, the condition that caused the plaintiff's incident was the improper placement and operation
of a scaffold next to a temporary hole into which a drain pipe was to be installed as part of the
respondent'
construction work. As such, the s abilityto ascertain facts concerning the conditions on,
and layout of, the accident scene are likely no different today than they would have been 30, 60 or
90 days following the accident were a notice of claim timely served. _S_ee
See Matter of Ferrer v. City
of New York, 172 A.D.2d 240, 241 (1st Dept 1991).
15) Indeed, despite the defendant's suggestion that itmay not be ableto identify witnesses
at this time, the identity of the workers on the construction site on the date of the incident will be
ascertainable through documents exchanged during the discovery, including the personnel rosters,
meeting minutes and man-power reports for the construction work. Those witnesses that can further
be identified though documents will supplement the known witness identified on the accident report
- WEB Superintendent Michael Todaro. the respondent can still investigate the claim
Finally,
through deposition question of the plaintiff himself, in the same manner as itwould have had notice
of claim been timely served.
16) In sum, the immediate investigation into the incident that the respondents are claiming
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they have been deprived of was in fact conducted. The respondents have the benefit of the results
ofthat investigation being reduced into an Accident Report at a time that was contemporaneous to
the incident. Indeed, then, what the respondents acknowledge is the best evidence concerning the
O'
incident has in fact been preserved. See O'Neill Aff at ¶¶ 40-41. Respondents now have the
opportunity to conduct complete discovery into the matter in the context of litigation, as they would
in any other case.
17) In light of the availability of witnesses familiar with the accident and accident scene,
respondents'
and the inability articulate how itwould have been able to approach an investigation
of the claim differently had it received a notice of claim within 90 days of the accident, the
respondents has not established that itwill be substantially prejudiced ifservice of late notice of
claim is permitted.
18) Where there is a lack of prejudice, combined with evidence of notice to the
respondent's agent, as in this case, permission to serve late notice of claim should be granted.
WHEREFORE, the Petitioner respectfully requests that this Court grant him leave to file
and serve a late notice of claim and grants such other and grant any and allother relief that the Court
deems just and proper.
Dated: Buffalo, New York
April 20, 2018
Anne
UZI
M. Esq.
Wheeler,
DOLCE PANEPINTO, P.C.
Attorneys for Petitioner
1260 Delaware Avenue
Buffalo, New York 14209
(716) 852-1888
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O'
TO: Kevin M. O'Neill, Esq.
O'
O'Neill Grosso
Attorneys for Respondents
600 Essjay Road
Williamsville, New York 14221
(716) 817-5923
I
I
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Preview
FILED: ERIE COUNTY CLERK 04/20/2018 02:46 PM INDEX NO. 803346/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 04/20/2018 STATE OF NEW YORK SUPREME COURT :COUNTY OF ERIE REPLY AFFIRMATION LEWIS ARGIRO Index No. 803346/2018 Petitioner, v. CITY OF BUFFALO BUFFAL O PUBLIC S CHOOLS BUFFALO BOARD OF EDUCATION Respondents. Anne M. Wheeler, Esq., an attorney duly admitted to practice law in the State of New York, affirms the following under penalty of perjury: 1) I am an attorney at law duly licensed to practice in the State of New York and am a partner in the law firm of Dolce Panepinto, P.C., attorneys for the Petitioner, LEWIS ARGIRO. As such, I am fully familiar with the facts and circumstances herein. 2) This reply affirmation is submitted in further support of the Petitioner's application for leave to file and serve a late notice of claim pursuant to General Municipal Law § 50(e)(5). 3) As fully set forth in the plaintiff's moving papers, when considering an application for leave to serve a late notice of claim, the Courts may considered a number of factors including whether the respondent had actual or constructive notice of the essential facts constituting the claim within the ninety (90) day statutory period or a reasonable time thereafter, whether the delay in serving the notice of claim would substantially prejudice the respondent in maintaining a defense, and excuse for delay in serving the notice of claim. General Municipal Law § 50(e)(5); Norstrand ~hi fh 9, 9AD. d Il 944 hD 9999; C \ . f h*,dhA D. d 1 of 7 FILED: ERIE COUNTY CLERK 04/20/2018 02:46 PM INDEX NO. 803346/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 04/20/2018 1095, 1095-1096 (2d Dep't 2011). The presence or absence of any single factor is not considered Employees' ees' dispositive. See Bay Terrace Co-op. . Section IV, Inc. v. New York State Em lo Retirement System Policemen's and Firemen's Retirement System, 55 N.Y.2d 979 (1982). 4) As the respondents seems to acknowledge, the case law favors assigning more significant weight to whether respondents had notice of the subject incident and whether there is O' "O' Affidavit" prejudice. S_ee Affidavit of Kevin M O'Neil (hereinafter "O'Neill Affidavit") at ¶¶ 4-6, 16. 5) With respect to notice, in the instant case, the respondents entered into a contract with Savarino Companies to act as their agent/ contractor with respect to the subject construction project. Savarino Companies, in turn, subcontracted with the plaintiff's employer WBE Walls & Ceilings to perform certain portions of the construction work. S_e.e Subcontract Agreement, attached hereto I - 204" as Exhibit A. That subcontract agreement identifies "Layfayette High School BPS as the t "owner" (see Exhibit A at page 1) and requires that "[a]ll Subcontractor employees shall be instructed to report any work related accidents immediately. Subcontractor's representative will report." investigate these accident immediately and provide Contractor with a copy of the incident See Exhibit A, Section 7.4( c),at page 7. 6) Consistent with the requirements of the contract, it isundisputed that the plaintiff immediately reported the details of the incident to his employer on the date of the incident, as reflected in the WBE Walls & Ceiling Accident Report. See Plaintiff's Moving Papers at Exhibit respondents' D. As per the contract requirements, the agent, Savarino Companies, would have been provided with a copy of that Accident Report at that time. 7) Given the fact that the plaintiff reported the incident on the day that itoccurred, that his employer created an Accident Report and that the Accident Report ostensibly was submitted to 2 2 of 7 FILED: ERIE COUNTY CLERK 04/20/2018 02:46 PM INDEX NO. 803346/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 04/20/2018 the agent of the respondents pursuant to contractual requirements, notice of the incident within the 90-day time frame the can be imputed to the respondents. O' 8) Moreover, and despite defendant's suggestion to the contrary (see O'Neill Aff at ¶¶l 5-21) the Accident Report contains sufficient to details to adequately put the respondents on notice of the essential facts that support the claim. Indeed, what the statute requires is consideration claim" of whether the municipality "acquired actual knowledge ofthe essential facts constituting the See General Municipal Law § 50(e)(5). The Courts have interpreted that to mean "knowledge of the facts that underlie the legal theory or theories on which liabilityispredicated in the [proposed] notice claim." of Troy v, Town of Hyde Park, 63 A.D.3d 913, 914 (2d Dept 2009). The municipality themselves." "need not have specific notice of the theory or theories Id. 9) By design, the Notice of Claim standard is not stringent: "[t]he Legislature did not intend that the claimant have the additional burden of pleading causes of action and legal theories, proper forthe pleadings, in the notice of claim, which must be filed within 90 days of the occurrence. [This requirement] was not meant as a sword to cut down honest claims, but merely as a shield to ones." protect [public entities] against spurious DeLeonibus v. Scognamillo, 183 A.D.2d 697, 698 (2d Dept 1992) citing Schwartz v. City of New York, 250 N.Y. 332 (1929)¡ see also Feldman v. Finkelstein & Partners, LLP, 39 Misc.3d 1222(A)(N.Y. Sup Ct 2013) . "[T]he plain purpose of statutes requiring pre-litigation notice to municipalities is to guard them against imposition by requiring notice of the circumstances . .. upon which a claim for damages is made, so that its authorities may be in a position to investigate the facts as to time and place, and decide whether the litigation." case is one for settlement or Rosenbaum v. City of New York, 8 N.Y.3d 1 (2006). Accordingly, the test for establishing the sufficiency of the information provided to the municipality 3 3 of 7 FILED: ERIE COUNTY CLERK 04/20/2018 02:46 PM INDEX NO. 803346/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 04/20/2018 is"whether [the notice] includes information sufficient to enable cityto investigate and nothing more required." may be Brown v. City of New York, 95 N.Y.2d 389, 393 (2000). 10) The Accident Report concerning the subject incident contains sufficient details of the essential facts underlying the incident that provide an basis for liability under the Labor Law statutes, and further details that the plaintiff sustained injuries as a result. See Accident Report. Specifically, 3' the Accident Report documents that the plaintiff was "climbing up the baker scaffold and about up on the scaffold when the wheel fellinto a new drain hole in the floor causing Baker scaffold to of" overturn. Resulting in scaffold falling on top plaintiff. Id. At that time, the plaintiff was experiencing left hip pain and accordingly the Accident Report documented that he had a "sore left hip." Id. 11) As indicated in the Proposed Notice of Claim attached to the plaintiff's moving papers, the plaintiff is alleging that the circumstances that gave rise to his incident constitute violations Sections 200, 240(1), & 241(6) of the New York State Labor Law. Those statutes require owners, such as respondents, to provide proper protection to construction workers, and specifically require that scaffolding provided for elevation-related construction work be properly constructed, .placed and operated. The facts set forth in the subject Accident Report clearly substantiate a violation of those Labor Law statute. Those the facts set forth were clearly sufficient for the respondents to investigate the claim and determine that itmay have liabilityunder the statutes that the plaintiff is claiming were violated. respondents' 12) Accordingly, despite the position to the contrary, the plaintiff respectfully submits that the respondents were on actual and adequate notice of the facts underlying the subject claim. 4 4 of 7 FILED: ERIE COUNTY CLERK 04/20/2018 02:46 PM INDEX NO. 803346/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 04/20/2018 13) The fact the plaintiff gave notice of,and documented, his incident on the same day that itoccurred bears directly on the issue of whether the respondents are substantially prejudiced by the late filing of the notice of claim. The claimant's immediate reporting of the incident provided the opportunity for the accident scene to be investigated contemporaneous with that occurrence. O' 14) As the respondents seem to concede (see O'Neill Aff at ¶41), absent this contemporaneous notice, an investigation of the precise conditions resulting in the claimant incident would have been difficult given the transient nature of the condition that resulted in the incident. Indeed, the condition that caused the plaintiff's incident was the improper placement and operation of a scaffold next to a temporary hole into which a drain pipe was to be installed as part of the respondent' construction work. As such, the s abilityto ascertain facts concerning the conditions on, and layout of, the accident scene are likely no different today than they would have been 30, 60 or 90 days following the accident were a notice of claim timely served. _S_ee See Matter of Ferrer v. City of New York, 172 A.D.2d 240, 241 (1st Dept 1991). 15) Indeed, despite the defendant's suggestion that itmay not be ableto identify witnesses at this time, the identity of the workers on the construction site on the date of the incident will be ascertainable through documents exchanged during the discovery, including the personnel rosters, meeting minutes and man-power reports for the construction work. Those witnesses that can further be identified though documents will supplement the known witness identified on the accident report - WEB Superintendent Michael Todaro. the respondent can still investigate the claim Finally, through deposition question of the plaintiff himself, in the same manner as itwould have had notice of claim been timely served. 16) In sum, the immediate investigation into the incident that the respondents are claiming 5 5 of 7 FILED: ERIE COUNTY CLERK 04/20/2018 02:46 PM INDEX NO. 803346/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 04/20/2018 they have been deprived of was in fact conducted. The respondents have the benefit of the results ofthat investigation being reduced into an Accident Report at a time that was contemporaneous to the incident. Indeed, then, what the respondents acknowledge is the best evidence concerning the O' incident has in fact been preserved. See O'Neill Aff at ¶¶ 40-41. Respondents now have the opportunity to conduct complete discovery into the matter in the context of litigation, as they would in any other case. 17) In light of the availability of witnesses familiar with the accident and accident scene, respondents' and the inability articulate how itwould have been able to approach an investigation of the claim differently had it received a notice of claim within 90 days of the accident, the respondents has not established that itwill be substantially prejudiced ifservice of late notice of claim is permitted. 18) Where there is a lack of prejudice, combined with evidence of notice to the respondent's agent, as in this case, permission to serve late notice of claim should be granted. WHEREFORE, the Petitioner respectfully requests that this Court grant him leave to file and serve a late notice of claim and grants such other and grant any and allother relief that the Court deems just and proper. Dated: Buffalo, New York April 20, 2018 Anne UZI M. Esq. Wheeler, DOLCE PANEPINTO, P.C. Attorneys for Petitioner 1260 Delaware Avenue Buffalo, New York 14209 (716) 852-1888 6 6 of 7 FILED: ERIE COUNTY CLERK 04/20/2018 02:46 PM INDEX NO. 803346/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 04/20/2018 O' TO: Kevin M. O'Neill, Esq. O' O'Neill Grosso Attorneys for Respondents 600 Essjay Road Williamsville, New York 14221 (716) 817-5923 I I 7 7 of 7