PETITIONER’S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined petitioner's request for leave to file a late notice of claim in a potential Labor Law 200, 240 (1) and 241 (6) action should not have been granted. Petitioner was struck by a falling plank when he was standing on a scaffold during renovation work at a school:
Although the petitioner made no attempt to proffer a reasonable excuse for the failure to serve a timely notice claim, “[n]either the presence nor absence of any one factor is determinative”; thus, “[t]he absence of a reasonable excuse is not necessarily fatal” … .
The petitioner failed to establish that the municipal parties acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual, or within a reasonable time thereafter. Notably, the record is devoid of evidence showing that any of the municipal parties was aware, prior to the commencement of this proceeding, that the petitioner's accident had occurred—let alone that the petitioner was claiming violations of Labor Law §§ 200, 240(1), and 241(6) … . Contrary to the petitioner's contention, a delay of four months following the expiration of the 90-day notice period does not constitute a “reasonable time” within the meaning of General Municipal Law § 50-e(5) … .
Further, the petitioner failed to present “some evidence or plausible argument” supporting a finding that the municipal parties were not substantially prejudiced by the four-month delay from the expiration of the 90-day statutory period … . Matter of Moroz v City of New York, 2018 NY Slip Op 06743, Second Dept 10-10-18
NEGLIGENCE (PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, EDUCATION-SCHOOL LAW, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LABOR LAW-CONSTRUCTION LAW (MUNICIPAL LAW, EDUCATION-SCHOOL LAW, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))