N.Y.C. FIREFIGHTER PERMITTED TO SERVE LATE NOTICE OF CLAIM FOR BURNS DUE TO DEFECTIVE GLOVES

Court: Supreme Court, Queens County, New York

Case: Martin A. Kalwiss v. The City of New York

Date: Jan. 31, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Bronx and Queens; Queens injury lawyer)

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PHYLLIS ORLIKOFF FLUG, J.

The following papers numbered 1 to 6 read on this motion

Notice of Motion1-2

Affirmation in Opposition3

Reply Affirmation (3)4-6

Petitioners, Martin A. Kalwiss and Roseann Kalwiss, move for leave to serve a Late Notice of Claim on respondent, the City of New York.

This is an action to recover damages for personal injuries allegedly sustained by petitioner Martin A. Kalwiss, a New York City Firefighter, on November 14, 2010, when responding to a fire at the private residence located at 74-07 97th Avenue, in the County of Queens, City and State of New York. Specifically petitioner Martin A. Kalwiss contends he received burns to the back of his hand because the fire safety glove he was provided with, and mandated to wear, was defective and allowed heat to penetrate through the glove to his hand.

A Notice of Claim must be served within ninety days after the claim arises (GML 50-e[1][a]). A court may grant the claimant leave to serve a late Notice of Claim if leave is sought within the time limited for the commencement of the action (See Pierson v. City of New York, 56 N.Y.2d 950 [1982]).

"In exercising its discretion to grant leave to serve a late notice of claim, the court must consider various factors, including whether (1) the claimant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (2) the claimant was an infant, or mentally incapacitated, (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation in defending on the merits" (Keyes v. City of New York, 2011 N.Y. Slip. Op. 8753, at *1 [2d Dept. November 29, 2011] (citing GML 50-e[5]; Iacone v. Town of Hempstead, 82 AD3d 888 [2d Dept.2011]; Barnes v. New York City Health & Hosps. Corp., 69 AD3d 934 [2d Dept.2010]; Chambers v. Nassau County Health Care Corp., 50 AD3d 1134, 1135 [2d Dept.2008])).

Petitioners have failed to set forth a reasonable excuse for their delay as ignorance of the notice of claim requirement is not a reasonable excuse (See Pico v. City of New York, 8 A.D.2d 287, 288 [2d Dept.2004] (citing Gilliam v. City of New York, 250 A.D.2d 680 [2d Dept.1998]; Lamper v. City of New York, 215 A.D.2d 484 [2d Dept.1995])). Nevertheless, failure to set forth a reasonable excuse is not fatal to the application if the municipality had actual knowledge and there is an absence of prejudice (See Rivera-Guallpa v. County of Nassau, 40 AD3d 1001, 1002 [2d Dept.2007]; Nardi v. County of Westchester, 18 AD3d 521, 522 [2d Dept.2005]; Hendershot v. Westchester Medical Ctr., 8 AD3d 381, 382 [2d Dept.2004]).

In support of their contention that respondent had actual knowledge of the essential facts constituting the claim within the requisite time period, petitioners submit:

1) A January 14, 2011 letter from the manufacturer of the defective glove warning that a portion of gloves produced by the corporation are defective and cause the wearer to sustain burns to the back of the hand;

2) A "Pass It On Program" report dated February 2, 2011 from the City of New York informing employees of incidents of burns caused by the gloves;

3) An undated supplemental report stating that the Fire Department investigated the glove problem.

In addition, petitioners submit, for the first time in reply only, a copy of petitioner Martin A. Kalwiss's injury report, dated February 3, 2011, which notes his injury and that there were problems with the glove he was using. As the City's opposition papers specifically addresses this injury report, this evidence may properly be considered (See Guarneri v. St. John, 18 AD3d 813, 813_14 [2d Dept.2005]).

Taken together, the evidence clearly establishes that the City was;

1) Aware that they were providing their personnel with defective equipment;

2) That the City was aware of that this equipment caused multiple employees to sustain injuries, and;

3) That the defective equipment provided to petitioner Martin A. Kalwiss potentially caused his injury.

This is sufficient to establish that City had actual knowledge of the essential facts constituting the claim within the requisite time period because (See Edwards v. City of New York, 2 AD3d 110, 111 [1st Dept.2003]; see also Davis v. County of Westchester, 78 AD3d 698, 699-700 [2d Dept.2010]; Gibbs v. City of New York, 22 AD3d 717, 719 [2d Dept.2005]).

Since the City had actual knowledge of the claim, it will not be prejudiced by the delay (See Williams v. Nassau County Med. Ctr., 6 NY3d 531, 539 [2006]; see also Whittaker v. City of New York, 71 AD3d 776, 778 [2d Dept.2010]) especially because the City has the defective equipment in its possession and there is no allegation that the condition of the equipment has changed (See Arias v. New York Hous. Auth., 178 A.D.2d 188 [1st Dept.1991]; cf. Mark v. Board of Educ., 255 A.D.2d 586 [2d Dept.1998]). In addition, the records reveal that the City has conducted some investigation into the defective equipment (See, e.g., Henderson v.. Town of Van Buren, 281 A.D.2d 872, 873 [4th Dept.2001]).

With respect to the respondent's contention that leave should not be granted because petitioners' claims lack merit, it is well settled that merits of a petitioner's claim are not an appropriate factor to be considered in determining a motion for leave to serve a late notice of claim (See Metzger v. Town of Warwick, 294 A.D.2d 503, 504 [2d Dept.2002]; Resto v. City of New York, 240 A.D.2d 499, 503 [2d Dept.1997]; Fritsch v. Westchester County Dep't. of Transp., 170 A.D.2d 602 [2d Dept.1991]).

Finally, petitioners' claims are not frivolous or patently lacking merit as, contrary to respondent's contention, the City may be liable for providing defective equipment to its employees (See, e.g., Lyall v. City of New York, 228 A.D.2d 566, 567 [2d Dept.1996]).

Accordingly, petitioner's motion is granted. Petitioner shall serve a notice of claim on respondent no later than March 2, 2012.

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