(Photo: iStock) (Photo: iStock)

An injured construction worker’s late-served notice of claim must be deemed timely because the defendant at issue—City University Construction Fund—received “actual notice of the essential facts constituting the claim within a reasonable time after the expiration of the 90-day statute of limitations period,” a state appeals court has ruled.

An Appellate Division, First Department panel has decided that Jose Dominguez’s notice of claim, which said he’d been injured while at a new building construction site, should be deemed valid even though it was served on City University Construction Fund one day after the 90-day period had run out.

The unanimous panel gave several reasons for its ruling, which reversed Manhattan Supreme Court Justice Erika Edwards’ 2017 decision denying Dominguez’s motion to hold the notice of claim timely filed, nunc pro tunc, or retroactively.

Among the reasons laid out by the panel were that the late-served “notice of claim provides the essential facts constituting the claim and further describes CUCF’s alleged negligence and alleged violations of Labor Law §§ 240(1), 241(6) and 200, and certain Industrial Code provisions.”

Moreover, the panel said that Dominguez “has demonstrated that his one-day delay in serving the notice of claim on CUCF did not substantially prejudice CUCF’s defense on the merits.”

Justices David Friedman, Angela Mazzarelli, Cynthia Kern, Jeffrey Oing and Anil Singh also noted that “CUCF’s conclusory statement that it did not have an opportunity to conduct an investigation because it was not able to preserve potential evidence or interview witnesses while their memories and recollections were fresh is insufficient to demonstrate prejudice as CUCF fails to explain how a one-day delay in the filing of the notice of claim, as opposed to a filing on the 90th day, deprived it of the opportunity to investigate.”

According to a petition Dominguez filed in Manhattan Supreme Court in April 2017, he was severely injured on Jan. 3, 2017, while on the ground floor of the work site and premises of the David H. Koch Center for Cancer Care and City University of New York/Hunter College’s Science and Health Professions Building in Manhattan.

The other defendants named in the petition were City University of New York, Hunter College of CUNY and the City University Construction Fund, though the late-filing issue applied only to CUCF in the matter before the appeals panel.

The justices began their Nov. 27 opinion by quoting Matter of Thomas v City of New York, 118 AD3d 537, 537 (1st Dept 2014), as starting that, “[i]n determining whether to grant an extension of time to serve a notice of claim, a court shall consider, in particular, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within the 90-day period specified in [General Municipal Law] section 50-e(1) or within a reasonable time thereafter.”

Moreover, again quoting the decision, the panel noted that “under the statute, the court must take into account all other relevant facts and circumstances, including, among other things, whether the petitioner offered a reasonable excuse for the late notice and whether the delay substantially prejudiced the respondent’s defense on the merits”

Lower in their decision, the panel quoted Matter of Thomas—a case where the justices said the delay in filing the notice of claim was 30 days—as explaining that “[t]his short delay does not prejudice respondents’ ability to investigate and defend the claim, as such a short passage of time is unlikely to have affected witnesses’ memories of the relevant events.”

Brian Isaac, an attorney with Pollack, Pollack, Isaac & DeCicco in Manhattan, represented Dominguez and could not be immediately reached for comment. Nor could Martin Adams, an attorney with Dopf, a law firm in Manhattan, who represented Dominguez.