Matter of Diegelman v. City of Buffalo (2017)

Our plain-English summary of Matter of Diegelman v. City of Buffalo (New York Supreme Court, Appellate Division, March 24, 2017).

James R. Diegelman, a City of Buffalo police officer, and his co-claimants sought permission to serve a late notice of claim on the City and other respondents. They alleged he has metastatic malignant mesothelioma from asbestos exposure at several locations the respondents owned. Supreme Court granted the application. The Fourth Department first reversed, holding the claim barred by General Municipal Law § 207-c. The Court of Appeals disagreed and sent the case back to consider issues not yet decided. On remittitur, the Fourth Department affirmed. It assumed the claimants had no reasonable excuse for the delay. It still found the other factors supported the trial court's discretion. The respondents learned the facts about nine months after the 90-day period, which the court found a reasonable time, and they did not claim the premises had changed. The claimants showed no substantial prejudice from the delay, and the respondents offered no particularized evidence of prejudice.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court, Appellate Division, 4th Dept.
• Decided: March 24, 2017
• Citation: 148 A.D.3d 1692
• Stage: Appeal from other
• State: New York

Outcome. On remittitur from the Court of Appeals, the Appellate Division affirmed the order allowing claimants James R. Diegelman and others to serve a late notice of claim on the City of Buffalo and the other respondents, who lost the appeal.

What the court held. Under General Municipal Law § 50-e (5), a court weighs all relevant factors, and no single factor decides the matter. Even assuming no reasonable excuse for the delay, a late notice of claim may be allowed where the municipality learned the facts within a reasonable time and showed no substantial prejudice.

Issues decided: Statute of Limitations, Trial Procedure and Discovery.

The people and their exposure

• James R. Diegelman: mesothelioma

The defendants

• City of Buffalo (employer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Mtr OF Diegelman v. City (New York Court of Appeals, 2016). The Court of Appeals reversed the Appellate Division's order, which had denied the Diegelmans leave to serve a late notice of claim on the City of Buffalo, and remitted the matter for consideration of the remaining issues; the claimants prevailed over the City.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

148 A.D.3d 1692 (2017)

51 N.Y.S.3d 279

2017 NY Slip Op 02316

In the Matter of JAMES R. DIEGELMAN et al., Respondents,

v.

CITY OF BUFFALO et al., Appellants.

711/15 CA 14-01919.

Decided March 24, 2017.

Appellate Division of the Supreme Court of New York, Fourth Department.

Appeal from an order of the Supreme Court, Erie County (John P. Lane, J.H.O.), entered January 16, 2014. The order granted the application of claimants for leave to serve a late notice of claim. The order was reversed by order of this Court entered June 12, 2015 in a memorandum decision (129 AD3d 1527), and claimants on December 15, 2015 were granted leave to appeal to the Court of Appeals from the order of this Court (26 NY3d 913), and the Court of Appeals on November 21, 2016 reversed the order and remitted the case to this Court for consideration of issues raised but not determined on the appeal to this Court (28 NY3d 231).

Present — Whalen, P.J., Centra, Carni and Scudder, JJ.

Now, upon remittitur from the Court of Appeals and having considered the issues raised but not determined on the appeal to this Court,

It is hereby ordered that, upon remittitur from the Court of [*1693] Appeals, the order so appealed from is unanimously affirmed without costs.

Memorandum: Respondents appeal from an order that granted claimants' application for leave to serve a late notice of claim. We previously held that the application should have been denied as patently without merit on the ground that the claim was barred by General Municipal Law § 207-c, but the Court of Appeals concluded that the claim was not so barred (Matter of Diegelman v City of Buffalo, 28 NY3d 231 [2016], revg 129 AD3d 1527 [2015]). The Court therefore reversed our order and remitted the matter to this Court "for consideration of issues raised but not determined on the appeal" (id. at 241). We now conclude that Supreme Court did not abuse its discretion in granting claimants' application.

The proposed notice of claim states that the claim is for personal injuries sustained by James R. Diegelman (claimant) during his employment as a police officer by respondent City of Buffalo. Claimants allege that claimant suffers from metastatic malignant mesothelioma as the result of his exposure to asbestos at several locations owned by respondents. Claimants submitted evidence that their application was made within one year and 90 days after the claim accrued (see General Municipal Law §§ 50-e [1] [a]; [5]; 50-i), i.e., upon claimant's diagnosis (see CPLR 214-c [2]; Matter of New York County DES Litig., 89 NY2d 506, 508-509 [1997]). In determining whether to grant claimants' application, the court was required to consider "all relevant facts and circumstances," including the "nonexhaustive list of factors" in section 50-e (5) (Williams v Nassau County Med. Ctr., 6 NY3d 531, 539 [2006]; see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 460-461 [2016]). "[T]he presence or absence of any one of the numerous relevant factors the court must consider is not determinative" (Salvaggio v Western Regional Off-Track Betting Corp., 203 AD2d 938, 938-939 [1994]). The three main factors are whether the claimants have shown a reasonable excuse for the delay, whether respondents had actual knowledge of the facts surrounding the claim within 90 days of its accrual "or within a reasonable time thereafter," and whether the delay would cause substantial prejudice to the municipality (§ 50-e [5]; see Dalton v Akron Cent. Schools, 107 AD3d 1517, 1518 [2013], affd 22 NY3d 1000 [2013]).

Here, even assuming, arguendo, that claimants failed to provide a reasonable excuse for their delay, we conclude that the remaining factors support the court's exercise of discretion in granting their application. Although respondents did not [*1694] obtain knowledge of the facts underlying the claim until approximately nine months after the expiration of the 90-day period, we conclude under the circumstances of this case that "this was a reasonable time, particularly in light of the fact that respondent[s] do[] not contend `that there has been any subsequent change in the condition of the [premises] which might

hinder the investigation or defense of this action'" (Matter of Edwards v Town of Delaware, 115 AD2d 205, 206 [1985]). Moreover, claimants made a sufficient showing that the late notice will not substantially prejudice respondents, and respondents failed to "respond with a particularized evidentiary showing that [they] will be substantially prejudiced if the late notice is allowed" (Newcomb, 28 NY3d at 467). We therefore conclude that the court "properly exercised its broad discretion in granting [claimants'] application pursuant to General Municipal Law § 50-e (5)" (McBee v County of Onondaga, 34 AD3d 1360, 1360 [2006]).

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites