IN RE: John Alves (2026)

NYSCEF documents 1-7, 9, and 13-16 were read and considered in deciding this petition and motion.

Relief Requested

The petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim and to deem a notice of claim timely served nunc pro tunc (motion sequence 001).

The petitioner also moves pursuant to CPLR 602(a) to consolidate the instant proceeding with the proceeding entitled John Alves v City of Long Beach, Index No.: 608250/2026 ("second proceeding") presently pending the in Supreme Court of Nassau County (motion sequence 002).

Background

On December 2, 2025, John Alves allegedly was injured while conducting pipe installation work under a roadway owned by the respondents in the instant proceeding and the City of Long Beach ("Long Beach"), which is the respondent in the second proceeding. In both proceedings, the 90-day notice of claim period expired on March 2, 2026.

On March 31, 2026, the petitioner commenced the instant proceeding by the filing of a petition. On May 14, 2026, counsel for the respondents Village of East Rockaway Department of Public Works and the Incorporated Village of East Rockaway ("appearing respondents") filed opposition. The respondents County of Nassau, Nassau County Department of Public Works, and Town of Hempstead ("non-appearing respondents") did not file opposition or otherwise appear.

On April 17, 2026, the petitioner commenced the second proceeding by the filing of a petition and order to show cause. On June 17, 2026, counsel for Long Beach filed opposition.

Motion Sequence 002

By notice of motion filed June 10, 2026, the petitioner moves pursuant to CPLR 602(a) to consolidate the instant proceeding with the second proceeding. In affirmation in support, counsel for the petitioner submits that both proceedings arise out of the same accident and present identical questions. Counsel argues that consolidation of the proceedings will "streamline briefing, eliminate the need for duplicative appearances, and allow for a single comprehensive record." Counsel further argues that consolidation will not prejudice the respondents. Attached to the motion is a "Stipulation to Consolidate" signed by the petitioner and the appearing respondents (see Exhibit 1).

"Where common questions of law or fact exist, a motion to consolidate or join for trial pursuant to CPLR 602 should be granted absent a showing of prejudice to a substantial right by the party opposing the motion" (Moses v B & E Lorge Family Trust, 147 AD3d 1043, 1045 [2d Dept 2017]).

Further, pursuant to CPLR 2214, "a notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard." "A failure to give proper notice of a motion deprives the court of jurisdiction to hear the motion" (Young v City of New York, 164 AD3d 711, 713 [2d Dept 2018]). Here, the petitioner failed to submit an affidavit of service to indicate that the non-appearing respondents and Long Beach were served with the instant motion (see Giandolfo v Hang Weng, 2024 NY Misc LEXIS 14643 [Sup Ct, Queens County 2024]). Thus, motion sequence 002 must be denied.

Motion Sequence 001

On March 31, 2026, the petitioner commenced the instant proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim and to deem a notice of claim timely served nunc pro tunc. An order to show cause was presented to this Court on March 31, 2026, and signed by the undersigned on April 8, 2026.

Attached to the petition are an affirmation by the petitioner's counsel, the proposed notice of claim, an affirmation by the petitioner, and FOIL letters served on the respondent (see NYSCEF doc. 2; see also Exhibits 1-3). Counsel argues that the petitioner failed to serve a timely notice of claim because he was focused on his medical condition and recovery and was not aware of the 90-day statutory deadline. Counsel further argues that the respondents had actual notice of the accident, as it was well reported and documented. Specifically, counsel submits the following. The petitioner told Jesse Posillico, Project Engineer, about the accident, and Mr. Posillico notified Vincent Saulino, Project Supervisor, and the Safety Department. The petitioner was instructed to go to City MD to explain the accident to medical providers and upon his return met with Mr. Saulino. Subsequently, Mr. Posillico filed a workers' compensation claim on the petitioner's behalf. Additionally, the petitioner submits that Mr. Posillico is contractually obligated to indemnify the respondents and carry liability insurance naming the respondents as additional insureds. In sum, counsel argues the Mr. Posillico's accident reports, project correspondence, insurance claims, and carrier communication establish that actual notice was received. Finally, counsel contends that the late notice of claim will not prejudice the respondents. The petitioner alleges that the respondents will not pay defense costs or have a judgment against them because Mr. Posillico's insurance will provide coverage. Counsel also argues that, because the accident was well documented and the witnesses are still alive, the respondents will not be prejudiced in their ability to investigate the accident or defend the proceeding. Counsel also states that if the petitioner cannot file a late notice of claim, there are no alternative remedies available to recover damages resulting from the accident. The affirmation of the petitioner echoes the affirmation of counsel and affirms the underlying facts of the accident.

In opposition, counsel for the appearing respondents argues that there is no evidence to prove that the appearing respondents received actual notice of the accident or injuries. Counsel states that the appearing respondents were not involved with the subject property or knew about the subject construction project. Next, counsel contends that the petitioner failed to submit admissible evidence, including medical records, to demonstrate a reasonable delay in filing the notice of claim. Counsel further contends that the petitioner's ignorance about the 90-day statutory deadline does not excuse his delay. Finally, counsel believes that the appearing respondents will suffer prejudice because they have not investigated the accident or alleged injuries.

"The key factors in determining whether to allow service of a late notice of claim are whether (1) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the municipality in its defense. The presence or absence of any one of these factors is not necessarily determinative, and the absence of a reasonable excuse is not necessarily fatal. However, whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim is seen as a factor which should be accorded great weight" (Matter of City of New York v County of Nassau, 146 AD3d 948, 949 [2d Dept 2017] [citations and internal quotation marks omitted]).

In considering the key factors, this application should be denied. First, the petitioner did not demonstrate a reasonable excuse for the failure to service a timely notice of claim. The petitioner's conclusory assertion that his injuries and prioritization of his health prevented him from making timely service, without any medical documentation or evidence, is insufficient to constitute a reasonable excuse (see Matter of Lang v Nassau County, 210 AD3d 773, 775 [2d Dept 2022]). Additionally, "the petitioner's ignorance of the law does not constitute a reasonable excuse" (Matter of Nunez v Village of Rockville Ctr., 176 AD3d 1211, 1214 [2d Dept 2019]). Second, the respondents did not acquire actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter. "A public corporation's knowledge of an accident and resulting injury, without more, does not constitute actual knowledge of the essential facts constituting the claim, at least where the incident and the injury do not necessarily occur only as the result of fault for which it may be liable. In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim, although it need not have specific notice of the theory or theories themselves" (Matter of Charbrut v City of New York, 237 AD3d 695, 697 [2d Dept 2025]). The petitioner's oral report of the injury to his supervisors, the worker's compensation claim, and Mr. Posillico's documentation did not provide the respondents with actual notice (see id.; see also Matter of Anderson v Town of Oyster Bay, 101 AD3d 708, 709 [2d Dept 2012]). Third, while this Court is not satisfied that the respondents would be substantially prejudiced in its defense, a balance of the key factors weigh in favor of denying the petition (see Matter of Charbrut v City of New York, 237 AD3d at 698; see generally Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455 [2016]).

The petitioner has not demonstrated his entitlement to pre-action discovery pursuant to CPLR 3102(c).

Conclusion

Accordingly, it is hereby,

ORDERED that the petition pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim and to deem a notice of claim timely served nunc pro tunc is DENIED; and it is further;

ORDERED that the petitioner's motion pursuant to CPLR 602(a) to consolidate the instant proceeding with the proceeding entitled John Alves v City of Long Beach, Index No.: 608250/2026 presently pending the in Supreme Court of Nassau County is DENIED.

Any applications not specifically addressed herein are DENIED.

This constitutes the decision and order of this Court.

This matter is disposed.

Dated: August 17, 2026

Mineola, New York

E N T E R :

HON. SARIKA KAPOOR, A.J.S.C.

Sarika Kapoor, J.