Preview
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
LEWIS ARGIRO
Petitioner
vs. AFFIDAVIT IN
OPPOSITION
CITY OF BUFFALO,
BUFFALO PUBLIC SCHOOLS,
BUFFALO BOARD OF EDUCATION Index No. 803346/2018
Respondents
STATE OF NEW YORK )
COUNTY OF ERIE ) ss:
VILLAGE OF WILLIAMSVILLE )
KEVIN M. O'NEILL, ESQ., being duly sworn, deposes and says:
1. That I am an attorney at law duly licensed to practice my profession in the State of
New York and am the attorney for the respondents, CITY OF BUFFALO, BUFFALO PUBLIC
"City"
SCHOOLS and BUFFALO BOARD OF EDUCATION, (hereinafter "City") and submit this
Affidavit in opposition to petitioner's Order to Show Cause which seeks permission from the
Court to file and serve a late Notice of Claim against the respondents. We submit that the
petitioner's papers fail to demonstrate entitlement to the relief sought because itlacks facts
which would support the application and is also conclusory in nature.
2. The application for leave to file and serve a late Notice of Claim arises from an
accident alleged to have occurred on November 6, 2017 at Lafayette High School (now known
as Lafayette International Community High School), 370 Lafayette Avenue in Buffalo, New
York 14213.
1 of 15
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
THE NOTICE OF CLAIM REQUIREMENT
3. Service of a notice of claim within ninety (90) days is a condition precedent to
commencing a tort action against a municipality. See, General Municipal Law (hereinafter
"GML") §50-e(1)(a); Brown v. City of Buffalo, 100 A.D.3d 1439 (4th Dept., 2012).
4. Given the broad scope of liability facing municipalities, itwould be impossible for a
city as large as Buffalo to be aware of allpotential tort claims against it,and its various
departments such at the Buffalo Board of Education. The purpose of the Notice of Claim
requirement is to avoid undue prejudice by alerting municipalities of these potential claims in a
timely manner, and providing an opportunity to investigate the underlying facts and
circumstances while information and witness recollection is fresh and available.
5. The practical reality is that municipalities are forced to make decisions on how best
to allocate limited funding to a wide scope of responsibility for public services every day.
Without this ninety (90) day requirement, the cost of investigating potential claims would
require commitment of vast public funds solely to identifying, investigating, defending, and
compromising claims.
6. A Notice of Claim, when timely served, is the catalyst to investigation and witness
interviewing while details to the incident are clear and accurate in the minds of the witnesses.
In its absence, the municipality is prejudiced because itwas deprived of that opportunity to
commence a timely investigation and the gathering of accurate facts. Notice of Claim
requirements, like statutory limitations periods, thus serve to protect municipalities, taxpayers,
and the court system from unwarranted and costly litigation of stale and meritless claims.
2 of 15
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
7. Unfortunately, the ultimate result of untimely Notices of Claim, i.e.,those received
later then ninety (90) days, is that municipalities are vulnerable to unwarranted tort liability that
eventually renders them less effective in protecting and providing for their citizens. Given no
opportunity to timely investigate and adequately defend against potential claims, the
municipality is exposed to meritless claims with increased exposure due to its lack of ability to
maintain a proper defense against such actions.
CLAIMANT'S NOTICE OF CLAIM IS UNTIMELY
8. There's no dispute that GML §50-e(1)(a) requires that a Notice of Claim should have
been served within ninety (90) days of the claimant's date of loss.
9. The subject incident arises from a Buffalo Public School incident on November 6,
2017. The last day for proper service of a Notice of Claim was 90 days from that date,
February 4, 2018. The petitioner failed to serve a Notice of Claim within that timeframe, thus
necessitating a request for judicial leave. The respondents first received notification of this
proceeding when they received the Order to Show Cause on March 14, 2018, which is 128
days, or, more than four months after the alleged incident occurred.
10. While applications for leave to file a late Notice of Claim are permitted under GML
§50-e (5), the extension provisions are strictly construed and the proposed claimant bears the
burden on any such application. See, Santana v. Westem Regional Off-Track Betting
Corporation, 2 A.D.3d 1304 (4th Dept., 2003).
11. The trial court is vested with broad discretion to deny or grant an application, and
must consider all of the relevant facts and circumstances, typically with a focus on (i) whether
the petitioner demonstrates a reasonable excuse for the delay, (ii)whether the municipality
3 of 15
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
acquired actual knowledge of the claim's essential facts within 90 days of its accrual, and (iii)
whether the delay would prejudice the municipality. GML §50-e(5); Folmar v. Lewiston-Porter
Central School District, 85 A.D.3d 1644 (4th Dept., 2011).
CLAIMANT SHOULD NOT BE GRANTED LEAVE
A. The Statute.
12. In considering petitioner's request, the Court will weigh the factors set forth in
GML 50-e(5) and also consider the pertinent case law as well as the facts and circumstances in
this matter. Section 50-e(5) provides as follows.
"
5. Application for leave to serve a late notice.
Upon application, the court, in its discretion, may extend the time to serve a notice of
claim specified in paragraph (a) of subdivision one of this section, whether such
service was made upon a public corporation or the secretary of state. The extension
shall not exceed the time limited for the commencement of an action by the claimant
against the public corporation. In determining whether to grant the extension, the
court shall consider, in particular, whether the public corporation or its attorney or its
insurance carrier acquired actual knowledge of the essential facts constituting the
claim within the time specified in subdivision one of this section or within a
reasonable time thereafter. The court shall also consider all other relevant facts and
circumstances, including: whether the claimant was an infant, or mentally or
physically incapacitated, or died before the time limited for service of the notice of
claim; whether the claimant failed to serve a timely notice of claim by reason of his
justifiable reliance upon settlement representations made by an authorized
representative of the public corporation or its insurance carrier; whether the claimant
in serving a notice of claim made an excusable error concerning the identity of the
public corporation against which the claim should be asserted; ifservice of the notice
of claim is attempted by electronic means pursuant to paragraph (e) of subdivision
three of this section, whether the delay in serving the notice of claim was based upon
the failure of the computer system of the city or the claimant or the attorney
representing the claimant; that such claimant or attorney, as the case may be,
submitted evidence or proof as is reasonable showing that (i) the submission of the
claim was attempted to be electronically made in a timely manner and would have
been completed but for the failure of the computer system utilized by the sender or
recipient, and (ii)that upon becoming aware of both the failure of such system and
the failure of the city to receive such submission, the claimant or attorney had
4 of 15
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
insufficient time to make such claim within the permitted time period in a manner as
otherwise prescribed by law; and whether the delay in serving the notice of claim
substantially prejudiced the public corporation in maintaining its defense on the
merits. An application for leave to serve a late notice shall not be denied on the
ground that itwas made after commencement of an action against the public
corporation."
B. Claimant Offered No Proof that the City had Actual Knowledge of this Claim.
13. In making an application for leave to file a late Notice of Claim, the claimant bears
the burden of proving that a municipality had actual knowledge of the "essential facts and
elements constituting their claims". See, Santana, 2 A.D.3d at 1304; Washington v. City of
New York, 72 N.Y.2d 881 (1988).
14. Petitioner's papers incorrectly state that either actual, or constructive notice to the
respondents of the essential facts is sufficient. The statute requires that there be actual
knowledge of the essential facts constituting the claim (General Municipal Law Section
50-e(5)). Petitioner's papers do not in any way establish that the respondents had notice of the
facts. They instead argue that notice to the petitioner's employer (identified by petitioner as
WBE Walls & Ceilings, Inc.) and the project supervisor (identified by petitioner as Savarino
Construction) somehow constitutes notice to the respondents. Notice to them is not notice to
the respondents and there are no facts submitted to this Court which support the claim that the
respondents had actual notice.
15. Courts have repeatedly held that "knowledge of the injuries or damages claimed by
a [proposed claimant], rather than mere notice of the underlying occurrence, is necessary to
establish actual knowledge of the essential facts of the claim within the meaning of GML
$50-e (5)". Santana, 2 A.D.3d at 1305.
5 of 15
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
16. While the presence or the absence of any one of the GML §50-e(5) factors
considered by the Courts is not necessarily determinative, whether the municipality had actual
knowledge of the essential facts of the claim is of great importance. See Devivo v. Town of
Carmel, 68 A.D.3d 991 (2nd Dept., 2009).
17. A claimant's failure to demonstrate that a municipality had actual knowledge of the
weight."
essential facts of a claim "should be accorded great See, Kalenda v. Buffalo Municipal
Housing Authority, 203 A.D.2d 937 (4th Dept., 1994); Riordan v. East Rochester Schools, 291
(4th
A.D.2d 922 Dept., 2002) (holding that the trial court abused its discretion in granting
claimant's motion, where the School district did not have knowledge of the claim until receipt
of the claimant's motion).
18. Actual knowledge means that the defendant acquired knowledge of the essential
facts forming the basis of the negligence claim within 90 days of its occurrence, not simply
knowledge that an accident occurred. See Kim v City of New York, 256 AD2d 83, 84 (1st
Dept., 1998) [Court held that knowledge that petitioner was injured when instructed by a
teacher to move a large piece of plywood, was not tantamount to notice of petitioner's claim
that respondents "were negligent in not providing petitioner with the mechanical means to
move the plywood and otherwise in their supervision of petitioner's activities."].
19. What satisfies the statute is not knowledge of the wrong. What the statute exacts is
notice of the claim (emphasis added). See Chattergoon v New York City Housing Authority, .
161 AD2d 141, 142 (1st Dept., 1990).
6 of 15
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
20. Here, the City had no notice of the claim. That makes sense given that the
construction area was cordoned off from the regular occupants of the building (i.e.students and
teachers).
21. The claimant offers no evidence that the injury was known to the City within the 90
day limit. Without providing any evidence that the City had proof that a claim was pending
against the City of Buffalo and/or Board of Education; and without any proof that the City had
actual knowledge of the essential facts and elements of the claim, claimant cannot meet its
burden and the petitioner's request should be denied.
C. Claimant has Not Offered a Reasonable Excuse for the Delay.
22. The tender of a reasonable or justifiable excuse for a claimant's delay is another
significant factor that courts weighs in determining whether to grant leave to filea late Notice
of Claim. Williams v. Nassau County Medical Center, 814 N.Y.S.2d 580 (2006); Ryder v.
Garden City School District, 277 A.D.2d 388 (2nd Dept., 2000).
23. Generally, courts will excuse a delay if a claimant offers a compelling excuse such
as death, physical or mental incapacity, or other extreme circumstances. For instance, in
Marchetti v. East Rochester School District, 302 A.D.2d 930 (4th Dept., 2003), a single mother
had to care for an infant claimant who was in a permanent semi-comatose condition. The Court
tragedy"
reasoned that such a "personal warranted an extensive delay in seeking leave to file a
late Notice of Claim.
24. "In order to obtain leave to serve a late Notice of Claim under subdivision 5 of
delay"
section 50-e of the GML, a party must give a satisfactory explanation for his Rodriguez
v. Cit of New York, 86 AD2d 533, 533 (1st Dept., 1982); see also Sarti v. Cit of New York,
7 of 15
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
268 AD2d 285, 285 (1st Dept., 2000) [Petitioner's application for leave to file a late Notice of
Claim was denied when her reason for the failure to timely file was a lack of knowledge of her
son's death. Court rejected her excuse insofar as "nowhere [did] petitioner actually describe her
attempts to investigate.
25. Reiterating the importance of a reasonable excuse, the Fourth Department recently
held that "[w]here a claimant does not offer a reasonable excuse for failing to serve a timely
Notice of Claim, a court may grant leave to serve a late notice of claim only if the respondent
has actual knowledge of the essential facts underlying the claim, there is no compelling
showing of prejudice to the respondent, and the claim does not "patently lack merit'". Candino
v. Starpoint Central School District, 115 A.D.3d 1170 (4th Dept., 2014).
26. Obviously then, the burden is on a claimant to offer proof establishing a reasonable
excuse. Claimant cannot meet this burden here because they have not provided an acceptable
excuse.
27. Petitioner's claimed reasonable excuse for the delay is that he was told by a lawyer
who previously represented him that his only remedy was a Worker's Compensation claim.
That alleged fact is not contained in an Affidavit from the petitioner, Mr. Argiro, but instead it
is presented as hearsay in counsel's affirmation. Prior counsel who allegedly dispensed that
advice is also not identified.
28. Even ifthe excuse tendered by petitioner was not inadmissible hearsay, itwould
still be insufficient as a matter of law.
29. Neither lack of awareness of possibility of lawsuit, nor ignorance of requirement to
serve Notice of Claim within 90 days, constitute reasonable excuse for delay in serving a
8 of 15
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
Notice of Claim against the municipality. Meyer v. County of Suffolk, 90 A.D.3d 720, 934
N.Y.S.2d 235 (2nd Dept., 2011).
claimants'
30. Potential assertions that they did not fully appreciate the distinctions
Workers'
between a claim for Compensation benefits and an action to recover damages for
Workers'
personal injuries, and that they mistakenly believed that their Compensation attorney
would also automatically prosecute a personal injury action against city on their behalf, were
insufficient to excuse the delay in filing timely Notice of Claim against the City. Bruzzese v.
City of New York, 34 A.D.3d 577, 824 N.Y.S.2d 653 (2nd Dept., 2006).
31. Claimants failed to demonstrate a reasonable excuse for failure to serve a timely
Notice of Claim on municipal power authority; ignorance of the law did not constitute a
8'
reasonable excuse, and other proffered excuses were vague and conclusory. Romeo v. Long
Island Power Authority, 133 A.D.3d 667, 19 N.Y.S.3d 316 (2nd Dept., 2015).
city'
32. Granting a construction worker leave to serve a late Notice of Claim upon city's
school construction authority was unwarranted in a suit arising from worksite accident in which
the worker fell from scaffold while working on project for city's school district; ignorance of
notice of claim requirement was not reasonable excuse for failing to filenotice, worker's
argument that he was unaware of extent of his injuries was belied by record, which showed that
Workers'
he stopped working on day of accident and filed Compensation claim, worker's
Workers'
employer was not acting as authority's agent when itfiled report with its
Compensation carrier, and thus authority did not acquire actual notice of essential facts, and
delay prejudiced authority by denying itopportunity to search for witnesses. Mehra v. City of
New York, 112 A.D.3d 417, 976 N.Y.S.2d 55 (1st Dept., 2013).
9 of 15
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
33. A worker employed by a general contractor was not entitled to leave to serve late
Notice of Claim upon city, to recover damages for injuries he allegedly sustained when he fell
while performing cleaning work at a wastewater treatment plant owned and operated by city,
where his assertion that he was unaware of Notice of Claim requirement was not a reasonable
excuse for his initial delay in serving Notice of Claim upon city, and there was no evidence in
the record that city had actual knowledge of essential facts constituting the claim within 90
days of alleged accident or a reasonable time thereafter, or that city would not be prejudiced by
delay between time the claim arose and time worker commenced proceeding for leave to serve
late Notice of Claim. Bonaguro v. City of New York. 122 A.D.3d 731, 996 N.Y.S.2d 144 (2nd
Dept., 2014).
34. The absence of a reasonable excuse for the delay in timely filing a Notice of Claim
requires denial of the application, Aviles v. New York City Health and Hospitals Corporation,
172 AD2d 237, 238 (1st Dept., 1991). Barring such reasonable explanation for the delay the
motion should be dismissed.
D. City is Pre judiced by the Unexcused Delay and Lack of Knowledge of this Claim.
35. Again, the purpose of the ninety (90) day Notice of Claim period is to provide "the
municipality opportunity to make an early investigation of the claim while the facts
fresh."
surrounding the alleged claim are still Adkins v. City of New York, 43 N.Y.2d 346, 350
O'
(1977); O'Brien v City of Syracuse, 54 NY2d 353, 358 (1981). The ninety (90) day period thus
prevents undue advantage from being taken when old claims are filed of which the municipality
has no notice. Prude v. Erie County, 47 A.D.2d 111 (4th Dept., 1975) (overruled on other
grounds).
10 of 15
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
36. It isthe petitioner's burden to show that the late Notice will not substantially
prejudice the public corporation by presenting evidence which supports the finding that there is
no substantial prejudice. Newcomb v. Middle Country Central School District, 28 N.Y.3d 455,
45 N.Y.S.3d 895 (2016). Courts have held that prejudice can be established by the
unexplained passage of time alone. Perkins v. New York City Health and Hospitals
Corporation, 167 A.D.2d 150 (1st Dept., 1990), and found that, in the absence of both actual
knowledge of the essential facts and elements of a claim and a reasonable excuse, there is a
prejudice"
"patent to a proposed defendant. Santana, 2 A.D.3d at 1304.
37. A delay is often prejudicial insofar as the passage of time often "prevent[s] an
occurred."
accurate reconstruction of the circumstances existing at the time the accident Vitale
v. City of New York, 205 A.D.2d 636, 636 (2nd Dept., 1994). Additionally, as in this instance,
a delay can impact a municipal defendant's ability to "locate and examine witnesses while their
fresh."
memories of the facts were still Gilliam v. City of New York, 250 A.D.2d 680, 681 (2nd
Dept., 1998).
38. The Fourth Department relatively recently has gone even further, finding in Brown
v. City of Buffalo, 100 A.D.3d 1439 (4th Dept., 2012), that "although we agree with claimants
that respondent 'failed to substantiate [its]conclusory assertions that [itwas] substantially
prejudiced by the [13-month] delay', we nevertheless conclude that the court properly denied
claimants'
application inasmuch as they failed to present a reasonable excuse for the delay and
claim."
respondent lacked timely knowledge of the facts constituting the
11 of 15
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
39. The petitioner claims that the respondents are not substantially prejudiced in
defending this action on the merits. Instead of providing any evidence to support that, they
merely assert in conclusory fashion that there is no substantial prejudice to the respondent.
40. The opposite is in fact the case. The respondents are substantially prejudiced in
defending this case on the merits. This accident occurred during a project to refurbish
Lafayette High School. No one from the City of Buffalo or the Buffalo Board of Education
was present at the time of the accident, and the incident was not reported to the City of Buffalo.
The first notice the respondents received was the Order to Show Cause requesting the leave to
file a late Notice of Claim. Clearly, that substantially prejudices the respondent's ability to
defend the case on its merits.
41. There is real and substantial prejudice here. Based on the claimant's allegations, it
appears this is exactly the type of case which required prompt investigation. The nature of this
claim would indicate that eyewitness testimony would provide the best evidence and most
reliable account of this subject incident. Here the factual details necessary to allow the City to
conduct a thorough investigation of this matter where not supplied within the required 90 days,
nor have they been provided to date, more than five months after the alleged incident, in the
proposed Notice of Claim.
42. The moving papers as well as the proposed Notice of Claim are vague and lack
sufficient factual information. They do not provide sufficient information for this claim to be
investigated. There is no way, even to this date, to properly investigate this matter and
determine if anyone, including other construction workers, students or staff members may have
observed the alleged incident. The proposed Notice of Claim does not go into any detail
12 of 15
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
concerning the location of the plaintiff's accident. As one can see from the Google Satellite
and Streetview photos which are attached as Exhibit "A", Lafayette High School is a very
large high school building with multiple floors. There is no indication where the plaintiff's
alleged accident occurred, i.e.whether itwas inside or outside of the building (although the use
"floor"
of the might lead one to conclude itwas inside the building); ifinside, itdoes not
identify which floor or the room where it occurred; and it also does not describe in any fashion
what the petitioner was doing at the time of his accident or identify anyone who witnessed the
accident.
43. Furthermore, the proposed Notice of Claim is vague with respect to the injury
claimed only broadly mentioning the lumbar spine.
44. The petitioner's argument that a 50-h hearing would retroactively cure the defects
in the moving papers is unfounded. The papers already provided by the petitioner to the Court
must include all of the requisite information. It isnot a valid argument to say that if the Court
allows the petitioner to file the late Notice of Claim, then the respondents can thereafter find
out more about the claim at the 50-h hearing. A belated 50-h hearing does not remedy the
problems with respect to lack of notice and substantial prejudice to the respondents.
45. Because the City was not afforded an opportunity to properly investigate the
alleged incident, the delay in serving a Notice of Claim has irreparably prejudiced our ability to
maintain a defense on the merits of this claim. The City has therefore been substantially
prejudiced, primarily because even should the City be able to identify witnesses at this time, the
stale recollection of the memories of such witnesses would severely impair the City's ability to
properly defend this matter. Due to the claimant's delay in serving a proper Notice of Claim
13 of 15
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
consisting of elements as detailed in GML§50-e (2), the City has been deprived of an
opportunity to timely investigate this claim at a time when witness statements by students,
faculty or other construction workers are freshly recollected and accurate, and details are
correctly recalled.
46. The Court, as previously stated, has discretion to allow a late filing after
considering, whether (1) the claimant has a reasonable excuse for the failure to serve a timely
Notice of Claim; (2) the municipality acquired actual knowledge of the essential facts
constituting the claim within 90 days after itarose, or a reasonable time thereafter; and (3)
whether the delay would substantially prejudice the municipality maintaining a defense on the
merits. Jusino v. New York City Housing Authority, 255 A.D.2d 41, 47 (1st Dept., 1999);
Gerzel v. City of New York, 117 A.D.2d 549, 550 (1st Dept., 1986); Morrison v New York
City Health and Hospitals Corporation, 244 A.D.2d 487, 487 (2d Dept., 1997).
47. The claimant has not provided a reasonable excuse for its failure to serve its claim,
but rather has shown that itmerely neglected to do so in a timely manner; the respondents did
not receive notice, the claimant has not provided the essential facts necessary to allow this
claim to be properly investigated; and has caused delay which now substantially prejudices the
City and prevents itfrom maintaining a proper defense in this matter.
CONCLUSION
48. Claimant's application for leave to serve a late Notice of Claim should be denied
for failure to satisfy the criteria for permitting service of a late Notice of Claim for the reasons
set forth above.
14 of 15
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018
WHEREFORE, it isrespectfully requested that the petitioner's request for leave to file
and serve a late Notice of Claim against the respondents be denied in all respects.
/
P
K EVI V
N M. O'NEILL
Sworn to Before Me This
f th Day of April, 2018.
/
I
Notary Public
BARBARA J. PFOHL
Notary Public, State of New York
Qualified in ErieCoup j r
~ /K
My Commission Expires~
Expires
Preview
FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE LEWIS ARGIRO Petitioner vs. AFFIDAVIT IN OPPOSITION CITY OF BUFFALO, BUFFALO PUBLIC SCHOOLS, BUFFALO BOARD OF EDUCATION Index No. 803346/2018 Respondents STATE OF NEW YORK ) COUNTY OF ERIE ) ss: VILLAGE OF WILLIAMSVILLE ) KEVIN M. O'NEILL, ESQ., being duly sworn, deposes and says: 1. That I am an attorney at law duly licensed to practice my profession in the State of New York and am the attorney for the respondents, CITY OF BUFFALO, BUFFALO PUBLIC "City" SCHOOLS and BUFFALO BOARD OF EDUCATION, (hereinafter "City") and submit this Affidavit in opposition to petitioner's Order to Show Cause which seeks permission from the Court to file and serve a late Notice of Claim against the respondents. We submit that the petitioner's papers fail to demonstrate entitlement to the relief sought because itlacks facts which would support the application and is also conclusory in nature. 2. The application for leave to file and serve a late Notice of Claim arises from an accident alleged to have occurred on November 6, 2017 at Lafayette High School (now known as Lafayette International Community High School), 370 Lafayette Avenue in Buffalo, New York 14213. 1 of 15 FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 THE NOTICE OF CLAIM REQUIREMENT 3. Service of a notice of claim within ninety (90) days is a condition precedent to commencing a tort action against a municipality. See, General Municipal Law (hereinafter "GML") §50-e(1)(a); Brown v. City of Buffalo, 100 A.D.3d 1439 (4th Dept., 2012). 4. Given the broad scope of liability facing municipalities, itwould be impossible for a city as large as Buffalo to be aware of allpotential tort claims against it,and its various departments such at the Buffalo Board of Education. The purpose of the Notice of Claim requirement is to avoid undue prejudice by alerting municipalities of these potential claims in a timely manner, and providing an opportunity to investigate the underlying facts and circumstances while information and witness recollection is fresh and available. 5. The practical reality is that municipalities are forced to make decisions on how best to allocate limited funding to a wide scope of responsibility for public services every day. Without this ninety (90) day requirement, the cost of investigating potential claims would require commitment of vast public funds solely to identifying, investigating, defending, and compromising claims. 6. A Notice of Claim, when timely served, is the catalyst to investigation and witness interviewing while details to the incident are clear and accurate in the minds of the witnesses. In its absence, the municipality is prejudiced because itwas deprived of that opportunity to commence a timely investigation and the gathering of accurate facts. Notice of Claim requirements, like statutory limitations periods, thus serve to protect municipalities, taxpayers, and the court system from unwarranted and costly litigation of stale and meritless claims. 2 of 15 FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 7. Unfortunately, the ultimate result of untimely Notices of Claim, i.e.,those received later then ninety (90) days, is that municipalities are vulnerable to unwarranted tort liability that eventually renders them less effective in protecting and providing for their citizens. Given no opportunity to timely investigate and adequately defend against potential claims, the municipality is exposed to meritless claims with increased exposure due to its lack of ability to maintain a proper defense against such actions. CLAIMANT'S NOTICE OF CLAIM IS UNTIMELY 8. There's no dispute that GML §50-e(1)(a) requires that a Notice of Claim should have been served within ninety (90) days of the claimant's date of loss. 9. The subject incident arises from a Buffalo Public School incident on November 6, 2017. The last day for proper service of a Notice of Claim was 90 days from that date, February 4, 2018. The petitioner failed to serve a Notice of Claim within that timeframe, thus necessitating a request for judicial leave. The respondents first received notification of this proceeding when they received the Order to Show Cause on March 14, 2018, which is 128 days, or, more than four months after the alleged incident occurred. 10. While applications for leave to file a late Notice of Claim are permitted under GML §50-e (5), the extension provisions are strictly construed and the proposed claimant bears the burden on any such application. See, Santana v. Westem Regional Off-Track Betting Corporation, 2 A.D.3d 1304 (4th Dept., 2003). 11. The trial court is vested with broad discretion to deny or grant an application, and must consider all of the relevant facts and circumstances, typically with a focus on (i) whether the petitioner demonstrates a reasonable excuse for the delay, (ii)whether the municipality 3 of 15 FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 acquired actual knowledge of the claim's essential facts within 90 days of its accrual, and (iii) whether the delay would prejudice the municipality. GML §50-e(5); Folmar v. Lewiston-Porter Central School District, 85 A.D.3d 1644 (4th Dept., 2011). CLAIMANT SHOULD NOT BE GRANTED LEAVE A. The Statute. 12. In considering petitioner's request, the Court will weigh the factors set forth in GML 50-e(5) and also consider the pertinent case law as well as the facts and circumstances in this matter. Section 50-e(5) provides as follows. " 5. Application for leave to serve a late notice. Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one of this section, whether such service was made upon a public corporation or the secretary of state. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one of this section or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; ifservice of the notice of claim is attempted by electronic means pursuant to paragraph (e) of subdivision three of this section, whether the delay in serving the notice of claim was based upon the failure of the computer system of the city or the claimant or the attorney representing the claimant; that such claimant or attorney, as the case may be, submitted evidence or proof as is reasonable showing that (i) the submission of the claim was attempted to be electronically made in a timely manner and would have been completed but for the failure of the computer system utilized by the sender or recipient, and (ii)that upon becoming aware of both the failure of such system and the failure of the city to receive such submission, the claimant or attorney had 4 of 15 FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 insufficient time to make such claim within the permitted time period in a manner as otherwise prescribed by law; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits. An application for leave to serve a late notice shall not be denied on the ground that itwas made after commencement of an action against the public corporation." B. Claimant Offered No Proof that the City had Actual Knowledge of this Claim. 13. In making an application for leave to file a late Notice of Claim, the claimant bears the burden of proving that a municipality had actual knowledge of the "essential facts and elements constituting their claims". See, Santana, 2 A.D.3d at 1304; Washington v. City of New York, 72 N.Y.2d 881 (1988). 14. Petitioner's papers incorrectly state that either actual, or constructive notice to the respondents of the essential facts is sufficient. The statute requires that there be actual knowledge of the essential facts constituting the claim (General Municipal Law Section 50-e(5)). Petitioner's papers do not in any way establish that the respondents had notice of the facts. They instead argue that notice to the petitioner's employer (identified by petitioner as WBE Walls & Ceilings, Inc.) and the project supervisor (identified by petitioner as Savarino Construction) somehow constitutes notice to the respondents. Notice to them is not notice to the respondents and there are no facts submitted to this Court which support the claim that the respondents had actual notice. 15. Courts have repeatedly held that "knowledge of the injuries or damages claimed by a [proposed claimant], rather than mere notice of the underlying occurrence, is necessary to establish actual knowledge of the essential facts of the claim within the meaning of GML $50-e (5)". Santana, 2 A.D.3d at 1305. 5 of 15 FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 16. While the presence or the absence of any one of the GML §50-e(5) factors considered by the Courts is not necessarily determinative, whether the municipality had actual knowledge of the essential facts of the claim is of great importance. See Devivo v. Town of Carmel, 68 A.D.3d 991 (2nd Dept., 2009). 17. A claimant's failure to demonstrate that a municipality had actual knowledge of the weight." essential facts of a claim "should be accorded great See, Kalenda v. Buffalo Municipal Housing Authority, 203 A.D.2d 937 (4th Dept., 1994); Riordan v. East Rochester Schools, 291 (4th A.D.2d 922 Dept., 2002) (holding that the trial court abused its discretion in granting claimant's motion, where the School district did not have knowledge of the claim until receipt of the claimant's motion). 18. Actual knowledge means that the defendant acquired knowledge of the essential facts forming the basis of the negligence claim within 90 days of its occurrence, not simply knowledge that an accident occurred. See Kim v City of New York, 256 AD2d 83, 84 (1st Dept., 1998) [Court held that knowledge that petitioner was injured when instructed by a teacher to move a large piece of plywood, was not tantamount to notice of petitioner's claim that respondents "were negligent in not providing petitioner with the mechanical means to move the plywood and otherwise in their supervision of petitioner's activities."]. 19. What satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the claim (emphasis added). See Chattergoon v New York City Housing Authority, . 161 AD2d 141, 142 (1st Dept., 1990). 6 of 15 FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 20. Here, the City had no notice of the claim. That makes sense given that the construction area was cordoned off from the regular occupants of the building (i.e.students and teachers). 21. The claimant offers no evidence that the injury was known to the City within the 90 day limit. Without providing any evidence that the City had proof that a claim was pending against the City of Buffalo and/or Board of Education; and without any proof that the City had actual knowledge of the essential facts and elements of the claim, claimant cannot meet its burden and the petitioner's request should be denied. C. Claimant has Not Offered a Reasonable Excuse for the Delay. 22. The tender of a reasonable or justifiable excuse for a claimant's delay is another significant factor that courts weighs in determining whether to grant leave to filea late Notice of Claim. Williams v. Nassau County Medical Center, 814 N.Y.S.2d 580 (2006); Ryder v. Garden City School District, 277 A.D.2d 388 (2nd Dept., 2000). 23. Generally, courts will excuse a delay if a claimant offers a compelling excuse such as death, physical or mental incapacity, or other extreme circumstances. For instance, in Marchetti v. East Rochester School District, 302 A.D.2d 930 (4th Dept., 2003), a single mother had to care for an infant claimant who was in a permanent semi-comatose condition. The Court tragedy" reasoned that such a "personal warranted an extensive delay in seeking leave to file a late Notice of Claim. 24. "In order to obtain leave to serve a late Notice of Claim under subdivision 5 of delay" section 50-e of the GML, a party must give a satisfactory explanation for his Rodriguez v. Cit of New York, 86 AD2d 533, 533 (1st Dept., 1982); see also Sarti v. Cit of New York, 7 of 15 FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 268 AD2d 285, 285 (1st Dept., 2000) [Petitioner's application for leave to file a late Notice of Claim was denied when her reason for the failure to timely file was a lack of knowledge of her son's death. Court rejected her excuse insofar as "nowhere [did] petitioner actually describe her attempts to investigate. 25. Reiterating the importance of a reasonable excuse, the Fourth Department recently held that "[w]here a claimant does not offer a reasonable excuse for failing to serve a timely Notice of Claim, a court may grant leave to serve a late notice of claim only if the respondent has actual knowledge of the essential facts underlying the claim, there is no compelling showing of prejudice to the respondent, and the claim does not "patently lack merit'". Candino v. Starpoint Central School District, 115 A.D.3d 1170 (4th Dept., 2014). 26. Obviously then, the burden is on a claimant to offer proof establishing a reasonable excuse. Claimant cannot meet this burden here because they have not provided an acceptable excuse. 27. Petitioner's claimed reasonable excuse for the delay is that he was told by a lawyer who previously represented him that his only remedy was a Worker's Compensation claim. That alleged fact is not contained in an Affidavit from the petitioner, Mr. Argiro, but instead it is presented as hearsay in counsel's affirmation. Prior counsel who allegedly dispensed that advice is also not identified. 28. Even ifthe excuse tendered by petitioner was not inadmissible hearsay, itwould still be insufficient as a matter of law. 29. Neither lack of awareness of possibility of lawsuit, nor ignorance of requirement to serve Notice of Claim within 90 days, constitute reasonable excuse for delay in serving a 8 of 15 FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 Notice of Claim against the municipality. Meyer v. County of Suffolk, 90 A.D.3d 720, 934 N.Y.S.2d 235 (2nd Dept., 2011). claimants' 30. Potential assertions that they did not fully appreciate the distinctions Workers' between a claim for Compensation benefits and an action to recover damages for Workers' personal injuries, and that they mistakenly believed that their Compensation attorney would also automatically prosecute a personal injury action against city on their behalf, were insufficient to excuse the delay in filing timely Notice of Claim against the City. Bruzzese v. City of New York, 34 A.D.3d 577, 824 N.Y.S.2d 653 (2nd Dept., 2006). 31. Claimants failed to demonstrate a reasonable excuse for failure to serve a timely Notice of Claim on municipal power authority; ignorance of the law did not constitute a 8' reasonable excuse, and other proffered excuses were vague and conclusory. Romeo v. Long Island Power Authority, 133 A.D.3d 667, 19 N.Y.S.3d 316 (2nd Dept., 2015). city' 32. Granting a construction worker leave to serve a late Notice of Claim upon city's school construction authority was unwarranted in a suit arising from worksite accident in which the worker fell from scaffold while working on project for city's school district; ignorance of notice of claim requirement was not reasonable excuse for failing to filenotice, worker's argument that he was unaware of extent of his injuries was belied by record, which showed that Workers' he stopped working on day of accident and filed Compensation claim, worker's Workers' employer was not acting as authority's agent when itfiled report with its Compensation carrier, and thus authority did not acquire actual notice of essential facts, and delay prejudiced authority by denying itopportunity to search for witnesses. Mehra v. City of New York, 112 A.D.3d 417, 976 N.Y.S.2d 55 (1st Dept., 2013). 9 of 15 FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 33. A worker employed by a general contractor was not entitled to leave to serve late Notice of Claim upon city, to recover damages for injuries he allegedly sustained when he fell while performing cleaning work at a wastewater treatment plant owned and operated by city, where his assertion that he was unaware of Notice of Claim requirement was not a reasonable excuse for his initial delay in serving Notice of Claim upon city, and there was no evidence in the record that city had actual knowledge of essential facts constituting the claim within 90 days of alleged accident or a reasonable time thereafter, or that city would not be prejudiced by delay between time the claim arose and time worker commenced proceeding for leave to serve late Notice of Claim. Bonaguro v. City of New York. 122 A.D.3d 731, 996 N.Y.S.2d 144 (2nd Dept., 2014). 34. The absence of a reasonable excuse for the delay in timely filing a Notice of Claim requires denial of the application, Aviles v. New York City Health and Hospitals Corporation, 172 AD2d 237, 238 (1st Dept., 1991). Barring such reasonable explanation for the delay the motion should be dismissed. D. City is Pre judiced by the Unexcused Delay and Lack of Knowledge of this Claim. 35. Again, the purpose of the ninety (90) day Notice of Claim period is to provide "the municipality opportunity to make an early investigation of the claim while the facts fresh." surrounding the alleged claim are still Adkins v. City of New York, 43 N.Y.2d 346, 350 O' (1977); O'Brien v City of Syracuse, 54 NY2d 353, 358 (1981). The ninety (90) day period thus prevents undue advantage from being taken when old claims are filed of which the municipality has no notice. Prude v. Erie County, 47 A.D.2d 111 (4th Dept., 1975) (overruled on other grounds). 10 of 15 FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 36. It isthe petitioner's burden to show that the late Notice will not substantially prejudice the public corporation by presenting evidence which supports the finding that there is no substantial prejudice. Newcomb v. Middle Country Central School District, 28 N.Y.3d 455, 45 N.Y.S.3d 895 (2016). Courts have held that prejudice can be established by the unexplained passage of time alone. Perkins v. New York City Health and Hospitals Corporation, 167 A.D.2d 150 (1st Dept., 1990), and found that, in the absence of both actual knowledge of the essential facts and elements of a claim and a reasonable excuse, there is a prejudice" "patent to a proposed defendant. Santana, 2 A.D.3d at 1304. 37. A delay is often prejudicial insofar as the passage of time often "prevent[s] an occurred." accurate reconstruction of the circumstances existing at the time the accident Vitale v. City of New York, 205 A.D.2d 636, 636 (2nd Dept., 1994). Additionally, as in this instance, a delay can impact a municipal defendant's ability to "locate and examine witnesses while their fresh." memories of the facts were still Gilliam v. City of New York, 250 A.D.2d 680, 681 (2nd Dept., 1998). 38. The Fourth Department relatively recently has gone even further, finding in Brown v. City of Buffalo, 100 A.D.3d 1439 (4th Dept., 2012), that "although we agree with claimants that respondent 'failed to substantiate [its]conclusory assertions that [itwas] substantially prejudiced by the [13-month] delay', we nevertheless conclude that the court properly denied claimants' application inasmuch as they failed to present a reasonable excuse for the delay and claim." respondent lacked timely knowledge of the facts constituting the 11 of 15 FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 39. The petitioner claims that the respondents are not substantially prejudiced in defending this action on the merits. Instead of providing any evidence to support that, they merely assert in conclusory fashion that there is no substantial prejudice to the respondent. 40. The opposite is in fact the case. The respondents are substantially prejudiced in defending this case on the merits. This accident occurred during a project to refurbish Lafayette High School. No one from the City of Buffalo or the Buffalo Board of Education was present at the time of the accident, and the incident was not reported to the City of Buffalo. The first notice the respondents received was the Order to Show Cause requesting the leave to file a late Notice of Claim. Clearly, that substantially prejudices the respondent's ability to defend the case on its merits. 41. There is real and substantial prejudice here. Based on the claimant's allegations, it appears this is exactly the type of case which required prompt investigation. The nature of this claim would indicate that eyewitness testimony would provide the best evidence and most reliable account of this subject incident. Here the factual details necessary to allow the City to conduct a thorough investigation of this matter where not supplied within the required 90 days, nor have they been provided to date, more than five months after the alleged incident, in the proposed Notice of Claim. 42. The moving papers as well as the proposed Notice of Claim are vague and lack sufficient factual information. They do not provide sufficient information for this claim to be investigated. There is no way, even to this date, to properly investigate this matter and determine if anyone, including other construction workers, students or staff members may have observed the alleged incident. The proposed Notice of Claim does not go into any detail 12 of 15 FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 concerning the location of the plaintiff's accident. As one can see from the Google Satellite and Streetview photos which are attached as Exhibit "A", Lafayette High School is a very large high school building with multiple floors. There is no indication where the plaintiff's alleged accident occurred, i.e.whether itwas inside or outside of the building (although the use "floor" of the might lead one to conclude itwas inside the building); ifinside, itdoes not identify which floor or the room where it occurred; and it also does not describe in any fashion what the petitioner was doing at the time of his accident or identify anyone who witnessed the accident. 43. Furthermore, the proposed Notice of Claim is vague with respect to the injury claimed only broadly mentioning the lumbar spine. 44. The petitioner's argument that a 50-h hearing would retroactively cure the defects in the moving papers is unfounded. The papers already provided by the petitioner to the Court must include all of the requisite information. It isnot a valid argument to say that if the Court allows the petitioner to file the late Notice of Claim, then the respondents can thereafter find out more about the claim at the 50-h hearing. A belated 50-h hearing does not remedy the problems with respect to lack of notice and substantial prejudice to the respondents. 45. Because the City was not afforded an opportunity to properly investigate the alleged incident, the delay in serving a Notice of Claim has irreparably prejudiced our ability to maintain a defense on the merits of this claim. The City has therefore been substantially prejudiced, primarily because even should the City be able to identify witnesses at this time, the stale recollection of the memories of such witnesses would severely impair the City's ability to properly defend this matter. Due to the claimant's delay in serving a proper Notice of Claim 13 of 15 FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 consisting of elements as detailed in GML§50-e (2), the City has been deprived of an opportunity to timely investigate this claim at a time when witness statements by students, faculty or other construction workers are freshly recollected and accurate, and details are correctly recalled. 46. The Court, as previously stated, has discretion to allow a late filing after considering, whether (1) the claimant has a reasonable excuse for the failure to serve a timely Notice of Claim; (2) the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after itarose, or a reasonable time thereafter; and (3) whether the delay would substantially prejudice the municipality maintaining a defense on the merits. Jusino v. New York City Housing Authority, 255 A.D.2d 41, 47 (1st Dept., 1999); Gerzel v. City of New York, 117 A.D.2d 549, 550 (1st Dept., 1986); Morrison v New York City Health and Hospitals Corporation, 244 A.D.2d 487, 487 (2d Dept., 1997). 47. The claimant has not provided a reasonable excuse for its failure to serve its claim, but rather has shown that itmerely neglected to do so in a timely manner; the respondents did not receive notice, the claimant has not provided the essential facts necessary to allow this claim to be properly investigated; and has caused delay which now substantially prejudices the City and prevents itfrom maintaining a proper defense in this matter. CONCLUSION 48. Claimant's application for leave to serve a late Notice of Claim should be denied for failure to satisfy the criteria for permitting service of a late Notice of Claim for the reasons set forth above. 14 of 15 FILED: ERIE COUNTY CLERK 04/19/2018 10:26 AM INDEX NO. 803346/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2018 WHEREFORE, it isrespectfully requested that the petitioner's request for leave to file and serve a late Notice of Claim against the respondents be denied in all respects. / P K EVI V N M. O'NEILL Sworn to Before Me This f th Day of April, 2018. / I Notary Public BARBARA J. PFOHL Notary Public, State of New York Qualified in ErieCoup j r ~ /K My Commission Expires~ Expires