By notice of motion dated December 8, 2010, petitioners, on behalf of themselves and all other employees similarly situated, move pursuant to General Municipal Law (GML) § 50-e for leave to file a late notice of claim. Respondents oppose.

Petitioners are former employees of respondent New York City Health and Hospitals Corporation (HHC). (Affirmation of Michael J. Lingle, Esq., dated Dec. 8, 2010 [Lingle Aff.], Exh. D). Between March 24, 2004 and March 24, 2010, pursuant to respondents' "Meal and Break Deduction Policy," a computerized timekeeping system automatically deducted from petitioners' paychecks breaks and mealtimes regardless of whether they actually took those breaks. (Id., Exh. B). Respondents allegedly did not prohibit petitioners from working during the break and meal times for which they were not paid, and petitioners were not relieved of their duties by other employees during those times. (Id.). Additionally, petitioners were allegedly expected to respond to calls and pages while on break and, upon asking their supervisors about compensation for work performed during break and meal time, were told that they could not be paid for that work. (Id.).

In a March 26, 2010 New York Post article, it was reported that more than 125,000 City health-service workers filed class action suits in Manhattan and Brooklyn federal courts, claiming that they worked without compensation through breaks and meal times and that HHC is planning "a vigorous defense" to the suits. (Lingle Aff., Exh. E). Two subsequent articles, one published in the Huffington Post on March 26, 2010 and another in the Washington Square News on April 6, 2010, also detail the suits. (Id., Exhs. F, G).

On March 24, 2010, named plaintiffs Jonathan Yarus and Lloyd Blackwood filed a class action complaint and demand for a jury trial in New York State Supreme Court, New York County (Supreme Court action), alleging that respondents failed to compensate them for working during designated meal and break times and asserting claims against respondents for fraud, negligent misrepresentation, conversion, breach of contract, unjust enrichment, estoppel, and violations of the New York Labor Law. (Id., Exh. B).

The same day, petitioners also filed a class action complaint and jury demand in the United States District Court for the Southern District of New York (District Court complaint), asserting claims under the Fair Labor Standards Act, 29 USC §§ 201-219, and the Racketeer Influenced and Corrupt Organizations Act, 18 USC §§ 1961-1968. (Id., Exh. C).

Some time thereafter, petitioners voluntarily discontinued their Supreme Court action, and on June 16, 2010, amended their District Court complaint to replace Lloyd Blackwood as named plaintiff with Mohamed Ali and to include the common law and New York Labor Law claims previously set forth in the Supreme Court complaint. (Id., Exh. D).

On December 8, 2010, petitioners served on respondents a notice of claim, alleging that they were undercompensated as a result of respondents' Meal and Break Deduction Policy, that they plan to assert common law claims against respondents for unjust enrichment, fraud, [*2]negligent misrepresentation, and conversion, and that the claims arose between March 24, 2004 and March 24, 2010. (Affirmation of Michael J. Lingle, Esq. in Further Support, dated Feb. 10, 2011 [Lingle Aff. in Further Support], Exh. E).

On December 13, 2011, petitioners served on respondents the instant petition, annexing a proposed notice of claim identical to the notice of claim previously served on respondents. (Lingle Aff., Exh. B).

Petitioners contend that respondents had actual knowledge of their claims within 90 days of accrual or shortly thereafter, as their claims arise out of respondents' own compensation policy. (Lingle Aff.). In any event, they assert that the latest date on which respondents obtained actual knowledge was April 6, 2010, the date on which the last of three articles stating that HHC was planning a "vigorous defense" was published. (Id.). Despite their failure to provide a reasonable excuse for their delay, petitioners claim their petition should be granted, as failure to provide a reasonable excuse is not fatal when actual knowledge and lack of prejudice are shown, and respondents, having obtained actual knowledge of their claims within the prescribed time period, will not be prejudiced by their late filing. (Id.).

In opposition, respondents claim that I have no discretion to grant petitioners leave to file a late notice of claim for common law claims that accrued more than one year and 90 days before they filed the instant petition and that there is no showing that they obtained actual knowledge within 90 days of accrual or a reasonable time thereafter of the claims based on events that occurred within the limitations period. They also assert that petitioners fail to provide a reasonable excuse for their delay or demonstrate that HHC will not be prejudiced by their late filing contending, rather, that they will be prejudiced by petitioners' delayed filing, as they had no notice of the claims and the passage of time may prevent accurate witness recollection. (Affirmation of Blanche Greenfield, Esq. in Opposition, dated Jan. 27, 2011).

In reply, petitioners contend that respondents' actual knowledge of their claims may be imputed from the media coverage of their federal complaints, and that as they have shown that respondents received actual knowledge of their claims, respondents have failed to demonstrate how they will be prejudiced by their late failing. (Id.). They also maintain that respondents' allegation that the action is time-barred is premature and that in any event, they have failed to identify which claims are time-barred. (Id.).

Here, the petition was filed on December 13, 2010, and the actions on which the claims are based, implementation of respondents' Meal and Break Deduction Policy, occurred between March 24, 2004 and March 24, 2010. Therefore, petitioners' common law claims arising from the implementation of the policy occurred more than one year and 90 days before December 13, 2010, or before September 13, 2009, and is thus, time-barred.

A petitioner bears the burden of demonstrating the municipality's actual knowledge of the claim. (Walker v New York City Tr. Auth., 266 AD2d 54, 54-55 [1st Dept 1999]). A municipality has actual knowledge of the essential facts underlying a claim when it has knowledge of the facts underlying the theory on which liability is predicated. (Matter of Grande v City of New York, 48 AD3d 565, 566 [2d Dept 2008]). Generally, the facts are those which demonstrate a connection between the injury or event and any wrongdoing on the part of the municipality. (Matter of Werner v Nyack Union Free School Dist., 76 AD3d 1026, 1027 [2d Dept 2010]). The municipality must have notice or knowledge of the specific claim and not merely general knowledge that a wrong has been committed. (Matter of Devivo v Town of Carmel, 68 AD3d 991, 992 [2d Dept 2009]; Matter of Wright v City of New York, 66 AD3d 1037, 1038 [2d Dept 2009]; Arias v New York City Health & Hosps. Corp., 50 AD3d 830, 832-833 [2d Dept 2008], lv denied 12 NY3d 738 [2009]; Pappalardo v City of New York, 2 AD3d 699, 700 [2d Dept 2003]; Chattergoon v New York City Hous. Auth., 161 AD2d 141, 142 [1st Dept 1990], lv denied 76 NY2d 875 [1990]). Actual knowledge may be imputed to a municipality where its employees engaged in the conduct giving rise to the claim. (Gibbs v City of New York, 22 AD3d 717, 719-20 [2d Dept 2005]; Picciano v Nassau County Civil Serv. Comm'n, 290 AD2d 164, 174 [2d Dept 2001]; Ayala v City of New York, 189 AD2d 632, 633 [1st Dept 1993]).

Here, respondents' policy and its implementation gave rise to petitioners' claims, as it is alleged that petitioners were undercompensated as a result of it and that their supervisors told them they could not be paid for work completed during meal and break times. Thus, actual [*4]knowledge may be imputed to respondents each time the policy was implemented. (See Picciano, 290 AD2d at 174 [where petitioner, who was disqualified from becoming corrections officer on the basis of color vision deficiency, asserted claims for discrimination, municipal employees' denial of petitioner's application demonstrated municipality's actual knowledge]).

Media coverage of the events or actions underlying a claim may also demonstrate actual knowledge on the part of a municipality. (O'Mara v Town of Cortland, 210 AD2d 337 [2d Dept 1994]; Matter of Annis v NY City Tr. Auth., 108 AD2d 643 [1st Dept 1985]; Stephenson v City of New York, 2005 NY Slip Op 25572, 11 Misc 3d 492 [Sup Ct, New York County 2005]).

Here, three articles reporting on the class action suits and respondents' compensation practices underlying the suits were published within 13 days of March 24, 2010, the last day on which the events or actions giving rise to petitioners' claims occurred, and two of the articles report that HHC is preparing a "vigorous defense." As the articles were published within 90 days of the last date on which the events underlying petitioners' claims occurred, and as they show that respondents were aware of and planning a response to these claims, they demonstrate respondents' actual knowledge of claims arising 90 days or some reasonable time before their publication. (See Matter of Annis, 108 AD2d at 644 [where petitioner asserting claims for personal injury resulting from train derailment, news coverage of derailment, Transit Department investigation, and fact that others injured in derailment asserted claims demonstrated actual knowledge]; Stephenson, 2005 NY Slip Op 25572, * 2, 11 Misc 3d at 494 [media coverage of health effects of World Trade Center clean-up provided City with actual knowledge of petitioner's tort claim for personal injuries resulting from his clean-up work there]; compare Diaz v City of New York, 2010 NY Slip Op 50354[U], * 3 [Sup Ct, Queens County 2010] [newspaper article describing "existence of mold, peeling lead paint, and asbestos at the subject school without indicating any connection between those conditions and petitioners' alleged injuries" did not show actual knowledge of claim for personal injuries caused by exposure to toxic materials]).

A petitioner also bears the burden of establishing lack of prejudice. (Matter of Kelley v New York City Health and Hosps. Corp., 76 AD3d 824, 828 [1st Dept 2010]). "Proof that the defendant had actual knowledge is an important factor in determining whether the defendant is substantially prejudiced by . . . a delay." (Williams, 6 NY3d at 539).

Here, petitioners have shown that respondents obtained actual knowledge of the facts underlying their claims through both implementation of their own policy and media coverage of the federal class actions and have thereby satisfied their burden. (See Schwindt v County of Essex, 60 AD3d 1248, 1250 [3d Dept 2009] [where petitioner demonstrated actual knowledge of part of municipality and lack of prejudice on this basis, municipality's conclusory assertion of prejudice based upon "mere passage of time" is "unpersuasive"]; Gibbs, 22 AD3d at 719-20 [where City employees performed acts complained of, and petitioner able to show actual knowledge of claim on this basis, petitioner also able to show lack of prejudice, as City provided only conclusory assertions of prejudice made solely by its attorney]).

Where a petitioner shows actual knowledge and an absence of prejudice, failure to provide a reasonable excuse is not a ground for denying his petition. (Matter of Ansong v City of [*5]New York, 308 AD2d 333, 334 [1st Dept 2003]).

Here, as petitioner has demonstrated that respondents obtained actual knowledge, and thus, that they will not be prejudiced by their late filing, their failure to explain their delay does not preclude granting their petition. (See Matter of Kumar v Westchester County Health Care Corp., 78 AD3d 1054 [2d Dept 2010] [leave to file late notice of claim properly granted despite absence of reasonable excuse for delay, as petitioner demonstrated actual knowledge and lack of prejudice]; Matter of Porcaro v City of New York, 20 AD3d 357 [1st Dept 2005] [same]).

Accordingly, it is hereby

ORDERED and ADJUDGED, that petitioners' application for leave to serve a late notice of claim is denied as to those common law claims arising from actions or events that occurred prior to September 13, 2009, and it is further

ORDERED AND ADJUDGED, that petitioners' application for leave to serve a late notice of claim is granted as to all other claims; and it is further

ORDERED AND ADJUDGED, that petitioners serve their notice of claim within 20 days of the date of this decision and judgment.

ENTER:

_______________________________

Barbara Jaffe, JSC

DATED:June 24, 2011

New York, New York