FILED: NEW YORK COUNTY CLERK 01/25/2022 04:32 PM
`NYSCEF DOC. NO. 127
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`INDEX NO. 190325/2020
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`RECEIVED NYSCEF: 01/25/2022
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`In the Matter of the Claim of
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`MIECZYSLAW SZOZDA and GENOWEFA SZOZDA
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`X
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`Index No. 190325/2020
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`AFFIRMATION IN REPLY
`TO OPPOSITION TO FILE
`A LATE NOTICE OF
`CLAIM
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`Plaintiffs,
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`Pursuant to Section 50-e(5) of the General Municipal Law,
`For an Order permitting service of a
`Late Notice of Claim against
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`THE SOUTH HUNTINGTON UNION FREE SCHOOL DISTRICT
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`Defendant.
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`X
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`Bonnie M. Steinwolf, Esq., an attorney duly admitted to practice law in the State of New
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`York, affirms the following under the penalty of perjury:
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`I am an attorney admitted to practice before this Court and am a member of the firm
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`MEIROWITZ & WASSERBERG, LLP, attorneys for the Petitioners MIECZYSLAW SZOZDA
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`and GENOWEFA SZOZDA, herein, and as such I am fully familiar with the facts and
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`circumstances set forth herein.
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`I submit this Affirmation in reply to defendant, South Huntington Union Free School
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`District’s, hereinafter, “South Huntington,” opposition to file a late notice of claim.
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`PROCEDURAL HISTORY AND STATEMENT OF MATERIAL FACTS
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`1.
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`On or about November 9, 2020, Petitioner was diagnosed with mesothelioma after
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`undergoing a thoracentesis with Dr. Andrea Wolf at Mount Sinai Hospital in New York.
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`FILED: NEW YORK COUNTY CLERK 01/25/2022 04:32 PM
`NYSCEF DOC. NO. 127
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`2.
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`Mr. Szozda’s occupational history is significant for exposure to asbestos while
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`working at the South Huntington Union Free School District. Petitioner was employed by
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`Whitestone Construction, a company who had contracts with various school districts including,
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`but not limited to the South Huntington Union Free School District. While working at South
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`Huntington, Mr. Szozda was tasked with removing and replacing windows. In the course of Mr.
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`Szozda’s duties, he, and/or others within his vicinity, disturbed asbestos-containing insulation and
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`caulking materials on or around the existing windows and frames. Mr. Szozda’s work, on
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`occasion, took him to various areas of the schools including, but not limited to, boiler rooms,
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`where he would have sustained exposure.
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`3.
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`A notice of claim was filed within ninety days of plaintiff’s diagnosis, against the
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`Huntington School District, for exposure sustained at the Walt Whitman High School. It became
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`apparent thereafter, on April 1, 2021, at the 50-H hearing conducted by the Huntington School
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`District that the Walt Whitman High School, where Mr. Szozda had worked and had been exposed
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`to asbestos, was in fact a part of the South Huntington Union Free School District.
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`4.
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`Almost immediately, on April 5, 2021, a notice of claim was filed on Mr. Szozda’s
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`behalf against the South Huntington School District.
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`5.
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`Plaintiff initially served a notice of claim within ninety days of the accrual of the
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`injury, but mistakenly served the wrong school district. Plaintiff then attempted to cure this mistake
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`by serving a notice of claim on the correct school district, but unfortunately it was after the ninety
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`day period from the date of diagnosis, but still within the one year and ninety-day time period
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`afforded by the General Municipal Law §50-e (5) to commence an action and which permits this
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`court, in its discretion, to grant the filing of a late notice of claim. South Huntington has actual
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`knowledge of the essential facts underlying the allegations here, and will not be unduly prejudiced
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`FILED: NEW YORK COUNTY CLERK 01/25/2022 04:32 PM
`NYSCEF DOC. NO. 127
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`by permitting a late notice of claim, as is demonstrated by the following: Upon information and
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`belief, South Huntington received the notice of claim, albeit late, almost nine months ago, the
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`school is still in existence and is ripe for testing, exploring and examining; it may have records of
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`contracts and work performed at the aforementioned location; South Huntington has already
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`examined plaintiff at a discovery deposition where topics related to his exposure, work and health
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`were explored, and South Huntington has actively engaged in discovery procuring medical and
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`employment records through Record Trak.
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`6.
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`ARGUMENT
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`General Municipal Law Section 50-e (5) provides that the Court has discretionary
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`power to extend the time within which service of Notice of Claim must be completed.
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` Subsection (5) provides that:
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`[i]n determining whether to grant the extension, the court shall consider, in particular,
`whether the public corporation or its attorney or its insurance carrier acquired actual
`knowledge of the essential facts constituting the claim within the time specified in
`subdivision one of this section or within a reasonable time thereafter [and]…all other
`relevant facts and circumstances, including: whether the claimant was…or mentally or
`physically incapacitated…and whether the delay in serving the notice of claim
`substantially prejudiced the public corporation in maintaining its defense on the
`merit.
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`7.
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`Once a notice of claim is filed, a suit must be commenced within one year and
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`ninety days from the time of the event. General Municipal Law §50-i. Here, the time of the event
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`was Mr. Szozda’s diagnosis of mesothelioma on November 9, 2020. Suit was commenced against
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`South Huntington on January 24, 2022. See Exhibit A - 4th Amended Summons and Complaint.
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`In Asaro v New York, 167 AD2d 130, 131 (1st Dep’t 1990), the Appellate Division, First Department
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`held that “[a]n application pursuant to General Municipal Law §50-e to file a late notice of claim
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`may not be made more than one year and 90 days after the cause of action accrued unless the statute
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`FILED: NEW YORK COUNTY CLERK 01/25/2022 04:32 PM
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`has been tolled.”
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`8.
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`ACTUAL KNOWLEDGE
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`South Huntington had knowledge of the essential facts of plaintiff’s claim within
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`a reasonable time after the ninety days had expired. A notice of Claim was filed on April 5, 2021,
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`only five months after plaintiff was diagnosed with mesothelioma. While plaintiff concedes that
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`it was not timely, hence, the leave sought to file a late notice of claim herein, it cannot be denied
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`that it provided South Huntington with knowledge of the facts and circumstances of the claims.
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`Moreover, it is disingenuous for South Huntington to now assert that the delay between the ninety
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`day period after plaintiff’s diagnosis and the notice of claim served two months thereafter would
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`have changed its knowledge base and/or caused any sort of prejudice inasmuch as the facts
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`surrounding the claim occurred more than twenty years earlier. Whether the notice of claim was
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`served within the ninety days or within one year and ninety days, it will not change the
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`circumstances of the nature of the claim; that of a latent injury which does not rear its head until
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`many years later.
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`9.
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`Plaintiff’s notice of claim provided the essential facts constituting his claim,
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`namely his diagnosis, the school in question where the exposure occurred, the type of work which
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`led to the exposure, various trades he worked with and around, specific areas and equipment where
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`work and consequential exposure occurred, and the time period during which this work was
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`performed.
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`10.
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`South Huntington’s reliance on Felice v. Eastport/South Manor Central School
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`District, 50 A.D. 3d 138 (2d Dept 2008), for the proposition that knowledge of the accident and
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`the resulting injury does not constitute actual knowledge is not analogous to the facts here. In
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`Felice, while the school was aware of the injury by way of an accident report, it was not aware of
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`FILED: NEW YORK COUNTY CLERK 01/25/2022 04:32 PM
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`the factors which led to the injury. This is wholly inapposite to the facts here. At the very outset,
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`Felice did not involve a latent injury; it involved an accident which caused an immediate injury.
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`In Felice, actual knowledge amounted to an accident report only, whereas here, actual knowledge
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`is at first gleaned through a notice of claim served after a diagnosis rears its ugly head many years
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`after exposure. Knowledge then exists through records and witnesses which exist from the time
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`in question. It is impossible to equate these two injuries, an immediate type and a latent type and
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`find that the knowledge gleaned by the public entity is the same. That being said, the notice of
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`claim in the instant matter provided much more than just an identification of an injury, it outlined
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`the where an how the work that was performed that led to this injury, thereby providing all of the
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`essential facts which constitutes the claim:
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`“Mr. Szozda was exposed to airborne asbestos dust while he performed this work. In the
`course of Mr. Szozda’s duties, he, and/or others within his vicinity, disturbed asbestos-
`containing materials on or around the existing windows and frames. Mr. Szozda’s work,
`on occasion, took him to various areas of the schools including, but not limited to, boiler
`rooms, where he would have sustained exposure to asbestos from various types of
`equipment, including, without limitation, pumps, valves, boilers and pumps.
`Furthermore, on some occasions, Mr. Szozda worked around other trades, including, but
`not limited to plumbers, electricians and carpenters who were perfoming their own work
`in his vicinity which consequently exposed him to asbestos.”
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`See Exhibit B – Plaintiffs’ Notice of Claim at 2.
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`This detailed and specific type of information gives rise to the essential facts of the claims,
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`whereas by contrast, that which was presented in Felice was limited to simply an accident report
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`stating the injury at issue. This would have been akin to plaintiff herein supplying South
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`Huntington with a pathology report and claiming that it amounted to actual knowledge of the facts
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`constituting the claim.
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`11. Moreover, it should be noted, that in Felice, actual knowledge was not the only
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`element missing. In not permitting a late notice of claim, the court also found that the petitioner
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`FILED: NEW YORK COUNTY CLERK 01/25/2022 04:32 PM
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`did not have a reasonable excuse for delay.
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`12.
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`Plaintiff’s notice of claim provides the essential facts constituting the claim, and
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`had South Huntington perused it, it would be abundantly clear that their argument as to its
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`deficiency falls flat inasmuch as all that they seek is provided therein. South Huntington admits
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`that it would be impossible to have actual knowledge of the exposure here given the lapse of time,
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`See South Huntington’s Opposition at ¶ 36, (though presumably if the notice of claim was filed
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`within ninety days, South Huntington would suffer from the same issue, since the exposure
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`occurred more than twenty years ago,) and claims that if the notice of claim was more specific
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`and supplied information about the specific room or areas or buildings it would be sufficient. The
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`notice of claim is replete with details including the name of the school where the injury occurred,
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`plaintiff’s employer at the time of exposure, the type of work plaintiff performed at the location,
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`certain areas of the school where work would been performed, e.g., boiler rooms, and the various
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`equipment he would have encountered there, along with the various trades he worked with and
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`around, and yet South Huntington ignores all of this and creates an argument based on a false
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`narrative. South Huntington claims to not have “actual knowledge” despite all of the information
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`supplied at the outset, while also admitting that actual knowledge is an impossibility creating an
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`impossible standard for plaintiff to meet. Presumably, even had the notice of claim been filed
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`within the ninety days, the knowledge that South Huntington would have had about the incident
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`would have been precisely the same, given the fact that the exposure occurred more than twenty
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`years ago. Importantly, in addition to receiving a detailed notice of claim within a reasonable
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`time after the ninety day period had expired, South Huntington has taken advantage of actively
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`participating in discovery, even taking the opportunity to examine Mr. Szozda about his work at
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`their school, and so by now, has all of the information it claims to have been deprived of. South
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`FILED: NEW YORK COUNTY CLERK 01/25/2022 04:32 PM
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`Huntington fails to acknowledge all of the information provided at the outset of the case and all
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`that is has continued to gather while acting as an active participant in the case and instead relies
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`on conclusory statements in an attempt to create a procedural hurdle to thwart Mr. Szozda’s
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`claims.
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`13. Moreover, it is important to note, especially in a latent injury type of case, that
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`“Actual notice” can be obtained directly or implied. “Actual notice” can be found when the public
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`agency’s employee is informed of or witnesses the accident. See In Dalton v. Akron Cent Sch., 107
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`A.D.3d 1517, 1519 (4th Dep’t 2013), aff’d, 22 N.Y. 3d 1000 (20130 (where claimant averred in his
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`affidavit that he notified the public agency’s employees about his accident immediately after it
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`occurred, agency had actual knowledge); or See In re Reneique v. New York City Hous. Auth., 72
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`A.D.3d 595, 596 (1st Dep’t 2010) (where public agency’s employee witnessed the accident enough
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`to impute actual knowledge even though had no report of the accident).
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`14. Mr. Szozda’s diagnosis of mesothelioma occurred decades after his exposure to
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`asbestos. Unlike a slip and fall, where the accident and injury occur almost contemporaneously,
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`an injury in an asbestos case takes many years to develop. The delay of injury and consequently,
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`the respondent’s lack of knowledge or notice of the incident (exposure) is not enough to prevent
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`plaintiff’s petition to file late to be granted. Matter of Diegelman v. City of Buffalo, 148 A.D.3d
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`1692 (4th Dept. 2017) where, a late notice of claim was permitted to be filed in an asbestos-related
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`injury case despite the fact that respondents did not obtain actual knowledge of the facts
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`underlying the claim until approximately nine months after the expiration of the 90-day period.
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`15.
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`Finally, “Actual notice” is not always necessary. Missing one of the three elements,
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`which courts give credence to, is not fatal to plaintiff’s instant application…”The presence or
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`absence of any one of the numerous relevant factors the court must consider is not determinative”
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`(Salvaggio v Western Regional Off-Tract Betting Corp., 203 AD2d 938, 939, (2nd Dept. 1994).
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`ABSENSE OF PREJUDICE
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`16.
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`South Huntington will not be prejudiced by allowing the notice of claim to be served
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`nunc pro tunc. South Huntington has not demonstrated that it would be prejudiced from defending
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`plaintiff’s claim on the merits. The exposure occurred more than twenty years ago, so whether
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`the claim was filed within ninety days, or within one year and ninety days after plaintiff’s
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`diagnosis, the issue is the same, that is that the incident occurred a long time ago. South
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`Huntington has not demonstrated that anything has changed from the ninety day time period after
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`plaintiff’s diagnosis, and the months thereafter when leave to file a late notice of claim was
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`sought. South Huntington has not claimed that after the ninety days from Mr. Szozda’s
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`diagnosis, that a fire destroyed relevant documents, nor have they said that the school at issue is
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`no longer in existence. In fact, South Huntington has not demonstrated anything that would
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`evidence that it has been prejudiced, rather, South Huntington has already examined the plaintiff
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`at a discovery deposition and has been actively procuring his medical and employment records.
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`With regard to records, South Huntington raises an issue as to mistakes in authorizations provided
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`for plaintiff’s records thereby causing some delay; it should be noted that these issues were cured,
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`and authorizations were provided to Record Trak a centralized system for all defendants, and
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`hence, any sort of issue with records would cause a delay to all parties and would not singularly
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`affect South Huntington.
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`17.
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`Although this case is part of the NYCAL October 2021 accelerated In Extremis
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`Cluster, due to the Covid-19 pandemic, trial dates have been delayed. For that reason, although
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`there is a discovery schedule in place, there is more time afforded to engage in discovery and to
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`request and grant extensions of time if need be. Thus, the In Extremis nature of the case is not one
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`that serves as a disadvantage to a party like South Huntington who, to date, has been an active
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`participant in discovery as evidenced by their requests for corrected authorizations to obtain
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`records and their participation in Mr. Szozda’s deposition.
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`18.
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`Even, assuming that actual knowledge was not obtained, the lack of prejudice
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`standing alone is grounds to permit a late notice of claim. See e.g., In re Giannicos v. Bellevue
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`Hosp. Med. Ctr., 42 A.D.3d 379,380 (1st Dep’t 2007) (“[l]eave to serve a late notice of claim was
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`properly granted, notwithstanding plaintiff’s failure to explain her delay, on a record establishing
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`that defendants were not prejudiced by the delay.”); In re Zahra v. New York City Hous. Auth.,
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`16 A.D.3d 245,245-46 (1st Dep’t 2005)(“[p]ermission to serve a late notice of claim and to amend
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`the original notice was properly granted where it was demonstrated that the Housing Authority
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`would not be prejudiced.”) Klusmeyer v. County of Monroe, 224 A.D.2d1033 (4th Dep’t 1996)
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`(leave to serve a late notice of clam granted where claimant’s delay in serving the notice of claim did
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`not substantially prejudice defendant County of Monroe in maintain its defense on the merits.”)
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`REASONABLE EXCUSE
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`19.
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`Petitioner has a reasonable excuse for his inability to comply with the ninety- day
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`statutory time limitation to serve a notice of claim because he served a timely notice of claim on the
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`Huntington Union Free School District, which he mistakenly believed was the school district that
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`the Walt Whitman Huntington school, where he recalled working, was a part of.
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`20. Mr. Szozda is hampered by both time and language; he worked at various schools
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`more than two decades ago and has a limited ability to speak English, his native language is Polish.
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`Plaintiff was tasked, within a short time of receiving a fatal diagnosis, of resurrecting his past and
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`correctly recalling the different schools and locations where he performed his work that
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`consequently exposed him to asbestos. No easy feat for anyone, less so for someone who is not
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`learned in the language. It was only during a 50-H hearing with the Huntington Union Free School
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`District, that he learned that the school at issue, the Walt Whitman High School, was actually within
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`the South Huntington Union Free School District. Thereafter, only days later, a notice of claim was
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`promptly filed on Plaintiff’s behalf on the correct school district, the South Huntington Union Free
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`School District.
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`21.
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`The excuse for filing a late notice of claim against South Huntington should be
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`deemed to be a reasonable one. A citizens' excusable error concerning the correct identity of the
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`entity against which the claim should be asserted was deemed to be reasonable excuse, and a late
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`notice of claim was permitted. Baldeo v. City of N.Y., 127 A.D.2d 809, 809, 511 N.Y.S.2d 937
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`(App. Div. 2nd Dept. 1987).
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`22.
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`In Ordillas v. MTA N.Y. City. Tr. 062008 NY Slip Op 3127, 50 A.D.3d 391, 391,
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`854 N.Y.S.2d 311 (App. Div. 1st Dept.) which defendant mistakenly relies upon, there was a year
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`long delay before the notice of claim was filed and the excuse for same was law office failure.
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`Contrast this with the instant matter, where a notice of claim was filed almost immediately after
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`the mistaken identity of the school district was discovered. Moreover, in Ordillas, the public
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`entity did not have actual knowledge of the facts and circumstances constituting her claim within
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`the proscribed ninety day period either.
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`23.
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`In light of the facts that the petitioner has a reasonable excuse for filing a late Notice
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`of Claim, and the fact that there is no prejudice to THE SOUTH HUNTINGTON UNION FREE
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`SCHOOL DISTRICT, and the fact that the notice of claim was filed within the one year and ninety day
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`period the Court should allow the service of a late Notice of Claim nunc pro tunc upon these entities
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`and permit the petitioner to seek redress for the serious and permanent injuries inflicted upon her.
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`24.
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`The reason for notice of claim requirements is to avoid stale claims and permit the
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`public corporation an opportunity to investigate the claim, defend it, or settle it early on, (Teresta
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`v. City of New York, 304 N.Y. 440, 443, 108 N.E. 2d 397,398 (1952)) it is not intended to provide
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`insurmountable hurdles in an effort to deprive plaintiffs, such as Mr. Szozda, from pursuing his
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`rightful claims after developing a malignant disease.
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`25.
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`Pursuant to CPLR 2217 (b), no prior request for this relief has been sought by your
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`affiant In this action in any Court.
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`WHEREFORE, your affiant respectfully requests that this Court, in its discretion, grant
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`leave to Serve a Late Notice of Claim upon the SOUTH HUNTINGTON UNION FREE SCHOOL
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`DISTRICT within thirty (30) days of the granting of the within application, deeming the filing of
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`the Notice of Claim to have been nunc pro tunc and for such other and further relief as to this
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`Court may seem just and proper.
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`Dated: New York, New York
`January 25, 2022
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`MEIROWITZ & WASSERBERG, LLP
`Attorneys for Claimant
`1040 6th Avenue, Suite 12B
` New York, N.Y. 10018
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`/s/:
`By:
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`Bonnie M. Steinwolf
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`FILED: NEW YORK COUNTY CLERK 01/25/2022 04:32 PM
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`VERIFICATION
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`Bonnie Steinwolf, Esq., an attorney duly admitted to practice law before the Courts of the State of
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`New York, hereby affirms under penalties of perjury and pursuant to CPLR Rule 2106, that the
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`contents of the within Affidavit are true to the knowledge of the affiant.
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`/s/:
`Bonnie M. Steinwolf, Esq.
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`Dated:
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`New York, N.Y.
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`January 25, 2022
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