Acevedo v. City of New York

193 Misc. 2d 791, 751 N.Y.S.2d 703, 2002 N.Y. Misc. LEXIS 1501
CourtNew York Supreme Court
DecidedSeptember 16, 2002
StatusPublished

This text of 193 Misc. 2d 791 (Acevedo v. City of New York) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acevedo v. City of New York, 193 Misc. 2d 791, 751 N.Y.S.2d 703, 2002 N.Y. Misc. LEXIS 1501 (N.Y. Super. Ct. 2002).

Opinion

OPINION OF THE COURT

Saralee Evans, J.

Petitioners are 110 firefighters employed by the New York City Fire Department, each of whom engaged in rescue and recovery work at the site of the World Trade Center on or after September 11, 2001. It is alleged that each of them was exposed to toxins when they were not provided with appropriate respiratory protection while working at the site, and that each developed respiratory and other illnesses during exposure to the air at the site of the disaster. Petitioners seek permission under General Municipal Law § 50-e to file late notices of claim as submitted with the motion. The city objects to joinder of petitioners’ applications in one proceeding and argues that the substantive relief sought should be denied because petitioners do not set forth an adequate excuse for failing to timely file and because the city had no notice of these claims.

With respect to the procedural objection, respondent asserts that, in joining in one special proceeding, petitioners have violated the express filing requirements of CPLR 304. That provision provides that an action or special proceeding is commenced upon filing a complaint or petition with the court and payment of a filing fee. Nowhere does it regulate the contents of a petition or the number of petitioners that may join in an application for relief, and there is no suggestion here that petitioners failed to pay the appropriate fee when their papers were filed. Nevertheless, the city contends that, because the commencement by filing system was instituted as a revenue raising scheme for the State, petitioners should be disallowed from joining their claims. No other law or court rule is cited for this contention.

Special proceedings are governed generally by article 4 of the CPLR. CPLR 402 provides that the pleadings shall conform to the same requirements as a complaint and answer. The statute governing permissive joinder of claims generally [793]*793(CPLR 1002) provides in relevant part that: “(a) Plaintiffs. Persons who assert any right to relief jointly, severally, or in the alternative arising out of the same transaction, occurrence, or series of transactions or occurrences, may join in one action as plaintiffs if any common question of law or fact would arise.” “Neither the CPLR nor any case law requires the payment of additional index number fees in a case where, as here, there are multiple plaintiffs.” (Warren v Cedar Hill Cemetery Assn., 277 AD2d 371, 371 [2d Dept 2000].)

The question is thus a simple one of whether there are “common issues of law and fact sufficient to permit the joinder of the claims of the parties plaintiff in * * * one [special proceeding].” (Chiba v Kurutz, 263 App Div 33, 35 [1st Dept 1941].) Here, similarly situated petitioners all seek the same relief, that is, permission to file a late notice of claim under General Municipal Law § 50-e (5). That statute provides that “the court shall consider in particular, whether the * * * [city] acquired actual knowledge of the essential facts constituting the claim,” as well as “all other relevant facts and circumstances,” including “whether the delay * * * substantially prejudiced the * * * [city].” Another factor to be considered is the reasonableness of the excuse offered for the delay in failing to timely file a notice of claim. (Matter of Hobgood v New York City Hous. Auth., 253 AD2d 555-556 [2d Dept 1998], lv denied 92 NY2d 819 [1999].) “[C]ourts should focus on the purpose served by a Notice of Claim: whether * * * municipal authorities can locate the place, fix the time and understand the nature” of the incident. (Brown v City of New York, 95 NY2d 389, 393 [2000].)

In exercising judicial discretion under General Municipal Law § 50-e (5), factors that have bearing on the issue include whether a petitioner articulates a reasonable excuse for lateness in serving the city with notice, whether the city had actual notice of the claim and whether the city was or would be prejudiced by late receipt of formal notice. Petitioners here collectively invoke the burdens placed upon them after September 11 as their excuse for failing to timely file. They further note the public and municipal awareness of the firefighters’ exposure to potentially toxic conditions at the disaster site as constituting actual notice to the city of the circumstances of each claim. Finally, they collectively rely on evidence of the city’s immediate and ongoing investigation into the conditions at Ground Zero as demonstrating the lack of prejudice to the city.

[794]*794As respondent repeatedly asserts, petitioners’ application to file late notices relies on the similar, if not identical, facts of each case.1 I find that the common questions of law and fact relevant to petitioners’ application predominate and that one special proceeding presents the most efficient and economical expenditure of judicial and municipal resources. (Akely v Kinnicutt, 238 NY 466 [1924]; cf., Bellew v City of New York, 272 AD2d 104 [1st Dept 2000].)

Turning then to the merits of petitioners’ application, General Municipal Law § 50-e affords this court discretion to extend the time to serve a late notice in an appropriate case. “Among the relevant criteria to be considered are whether the municipality had actual knowledge of the essential facts constituting the claim and whether any prejudice resulted from the delay in notice beyond the 90-day statutory period * * * ” (Annis v New York City Tr. Auth., 108 AD2d 643, 644 [1st Dept 1985]).

Here, the rescue efforts of the New York City Fire Department during the period following September 11th put the city and the world on notice as to the time, place and circumstances of petitioners’ exposure to toxins alleged to have caused pulmonary damage. Numerous federal, state and city agencies and departments began monitoring the conditions under which petitioners worked at the World Trade Center site, including the air quality,2 so that the city was not prejudiced by any failure to timely investigate the circumstances of petitioners’ allegations. Clearly, respondent had actual knowledge of the closely studied repercussions of a major disaster. (Annis v New York City Tr. Auth., supra at 645.)

[795]*795Moreover, at the time of injury petitioners were working as firefighters, doing the work the Fire Department assigned, at assigned sites, under the Fire Department’s direct supervision. Petitioners underwent collective Fire Department medical examinations and breathing tests, resulting in collective injury reports. Respondent thus had actual knowledge of the potential environmental hazards faced by petitioners, the protective equipment it issued or failed to issue, and the injuries suffered by claimants as a result.

This is clearly distinct from the facts of Washington v City of New York (72 NY2d 881 [1988]) and other cases cited by respondent. In Washington, a would-be claimant offered merely his own speculation that an accident report had been filed with city inspectors. The other cases cited by respondent involve individual accidents noted in a particular accident report or medical record in the city’s possession, where the facts known to the city were deemed not to have adequately alerted the city as to a potential claim. (See, Matter of Negron v New York City Health & Hosps. Corp., 262 AD2d 217 [1st Dept 1999]; Kim v City of New York, 256 AD2d 83 [1st Dept 1998]; Mondert v New York City Tr. Auth.,

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Related

Brown v. City of New York
740 N.E.2d 1078 (New York Court of Appeals, 2000)
Akely v. . Kinnicutt
144 N.E. 682 (New York Court of Appeals, 1924)
Chiba v. Paul Kurutz & The City Ice & Fuel Co
263 A.D. 33 (Appellate Division of the Supreme Court of New York, 1941)
Morris v. County of Suffolk
445 N.E.2d 214 (New York Court of Appeals, 1982)
Washington v. City of New York
528 N.E.2d 513 (New York Court of Appeals, 1988)
Morris v. County of Suffolk
88 A.D.2d 956 (Appellate Division of the Supreme Court of New York, 1982)
Annis v. New York City Transit Authority
108 A.D.2d 643 (Appellate Division of the Supreme Court of New York, 1985)
Gerzel v. City of New York
117 A.D.2d 549 (Appellate Division of the Supreme Court of New York, 1986)
Goodall v. City of New York
179 A.D.2d 481 (Appellate Division of the Supreme Court of New York, 1992)
Chattergoon v. New York City Housing Authority
197 A.D.2d 397 (Appellate Division of the Supreme Court of New York, 1993)
Diallo v. City of New York
224 A.D.2d 339 (Appellate Division of the Supreme Court of New York, 1996)
Mondert v. New York City Transit Authority
224 A.D.2d 500 (Appellate Division of the Supreme Court of New York, 1996)
Weiss v. City of New York
237 A.D.2d 212 (Appellate Division of the Supreme Court of New York, 1997)
Hobgood v. New York City Housing Authority
253 A.D.2d 555 (Appellate Division of the Supreme Court of New York, 1998)
Kim v. City of New York
256 A.D.2d 83 (Appellate Division of the Supreme Court of New York, 1998)
Negron v. New York City Health & Hospitals Corp.
262 A.D.2d 217 (Appellate Division of the Supreme Court of New York, 1999)
Bellew v. City of New York
272 A.D.2d 104 (Appellate Division of the Supreme Court of New York, 2000)

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Bluebook (online)
193 Misc. 2d 791, 751 N.Y.S.2d 703, 2002 N.Y. Misc. LEXIS 1501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acevedo-v-city-of-new-york-nysupct-2002.