New York Appellate Team Obtains Affirmance of Dismissal of Would-Be Labor Law Action Against Municipal Entities

New York, N.Y. (July 11, 2024) - In Charlot v. City of New York, ___ A.D.3d ___, 2024 NY Slip Op 03161 (2d Dep’t 2024), New York Associate Dean Pillarella, a member of the Appellate Practice, recently obtained an affirmance of the lower court’s dismissal of the plaintiff’s action against the City of New York (“the City”) for failure to timely serve a notice of claim. New York Partner Meghan Cavalieri, a member of the Construction Practice, and her team authored and argued the initial motion to dismiss.

The plaintiff alleged to have sustained injuries as a result of a construction-site accident on December 8, 2020, on City-owned property in the course of the construction of a school by the New York City School Construction Authority. N.Y. General Municipal Law (“GML”) § 50-e(1)(a), requires service of a notice of claim within 90 days after the claim arises as a condition precedent to the commencement of a tort action. The plaintiff served no notice of claim until June 2021 and commenced an action in January 2022, alleging violations of N.Y. Labor Law §§ 240(1), 241(6), and 200. Given the plaintiff’s failure to comply with GML § 50-e(1)(a), Meghan and her team rejected the notices of claim as untimely. The plaintiff then moved for leave to deem the notices of claim timely served nunc pro tunc. In response, Meghan and her team opposed the motion and cross-moved to dismiss the action.

GML § 50-e(5) authorizes courts, in their discretion, to extend the time period for serving a notice of claim. The factors to be considered by the court are (1) whether the municipality acquired actual knowledge of the essential facts constituting the claim within the 90-day period or within a reasonable time thereafter, (2) the prejudice to the municipality, and (3) whether the plaintiff proffers a reasonable excuse for the failure to timely serve a notice of claim.

In their cross-motion, Meghan and her team argued that no factor was satisfied. With respect to actual notice, Meghan and her team argued that the plaintiff initially reported the accident as an incident involving a co-worker’s pushing a mortar buggy over his foot, rather than an action involving workplace hazards germane to the Labor Law and specifically the strict-liability “Scaffold Law,” Sec. 240(1); with respect to prejudice, that plaintiff’s novel theory of liability was grossly prejudicial to the City and deprived it of its right to conduct a timely investigation; with respect to a reasonable excuse, that the plaintiff’s purported inability to obtain counsel was not only false but irrelevant as a matter of law, as it was shown that he had previously retained counsel in connection with the Workers’ Compensation Law, and feigned ignorance of the law was no excuse.

The Supreme Court, Queens County, denied the plaintiff’s motion and granted the City’s cross-motion, dismissing the action. The plaintiff then appealed.

On appeal, Dean argued that the lower court committed no abuse of discretion in both denying the plaintiff’s motion and granting the City’s cross-motion, as each prong of GML § 50-e(5) weighed in the City’s favor. In particular, Dean argued that the plaintiff fundamentally misconstrued the concepts of actual notice of the mere happening of an accident with actual notice of the essential facts and legal theories on which liability is predicated.

On June 12, 2024, the Appellate Division, Second Department, agreed and issued an order affirming the lower court’s dismissal of the action.

Had the case survived, the municipal defendants faced strict liability under the NY Labor Law and potentially significant damages exposure due to the injured worker’s claims.

Charlot reminds the bar that, in cases involving municipalities, the notice of claim requirement should never be overlooked. The failure to comply with the requirement can be fatal to the plaintiff’s case.