Opinion
11956N Index No. 161860/18 Case No. 2019-4359
10-06-2020
Silvia ENGLISH, Plaintiff–Appellant, v. The BOARD OF TRUSTEES OF the FASHION INSTITUTE OF TECHNOLOGY, et al., Defendants–Respondents.
Law Offices of Miller & Miller, Brooklyn (Andrew R. Miller of counsel), for appellant. Cornell Grace, P.C., New York (Adeel Jamaluddin of counsel), for respondents.
Law Offices of Miller & Miller, Brooklyn (Andrew R. Miller of counsel), for appellant.
Cornell Grace, P.C., New York (Adeel Jamaluddin of counsel), for respondents.
Friedman, J.P., Webber, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered May 8, 2019, which denied petitioner's application for an order permitting her to file a late notice of claim on respondents and deeming the annexed notice of claim timely served nunc pro tunc, unanimously reversed, on the law and the facts, and in the exercise of discretion, without costs, and the application granted.
Although counsel's error in identifying the proper party was arguably not excusable, the error was not due to any fault or delay on the part of petitioner, and "[t]he failure to set forth a reasonable excuse is not, by itself, fatal to the application" ( Velazquez v. City of N.Y. Health & Hosps. Corp. [Jacobi Med. Ctr.], 69 A.D.3d 441, 442, 894 N.Y.S.2d 15 [1st Dept. 2010], lv. denied 15 N.Y.3d 711, 2010 WL 4065634 [2010] ; see Harris v. New York City Health and Hosps. Corp., 160 A.D.3d 441, 442, 74 N.Y.S.3d 35 [1st Dept. 2018] ). This is particularly true where, as here, the record shows that respondents received timely and actual notice of the essential facts underlying plaintiff's claim (see id. at 442, 74 N.Y.S.3d 35 ).
Here, the incident report gave respondents actual knowledge of the pertinent facts constituting the claim. The report makes clear that petitioner fell on the sidewalk, and the photographs contained in the report show that the sidewalk is cracked and raised, presenting a tripping hazard (compare Wollins v. New York City Bd. of Educ., 8 A.D.3d 30, 30–31, 777 N.Y.S.2d 637 [1st Dept. 2004] ). Furthermore, according to petitioner's 50–h testimony, her fall was notable enough that a security guard immediately called his supervisor to the scene, and there is no indication that respondents are prejudiced by the delay (see Matter of Richardson v. New York City Hous. Auth., 136 A.D.3d 484, 485, 24 N.Y.S.3d 308 [1st Dept. 2016], lv denied 28 N.Y.3d 905, 2016 WL 6209312 [2016] ).