Opinion
1315N, 157081/13.
05-31-2016
Stephany HOSKING, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondents.
Opinion Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered April 30, 2014, which denied plaintiff's motion to deem her previously served notice of claim timely, nunc pro tunc, or for leave to file a late notice of claim, unanimously reversed, on the law and the facts, without costs, and the motion granted to the extent of deeming the previously served notice of claim timely.
The court improvidently exercised its discretion in denying plaintiff's motion. There is no dispute that the motion for leave was timely made and the lack of a reasonable excuse for the delay or a causative nexus between the delay and plaintiff's infancy is not fatal (see Matter of Thomas v. City of New York, 118 A.D.3d 537, 988 N.Y.S.2d 152 [1st Dept.2014] ; Lisandro v. New York City Health & Hosps. Corp. [Metropolitan Hosp. Ctr.], 50 A.D.3d 304, 855 N.Y.S.2d 74 [1st Dept.2008], lv. denied 10 N.Y.3d 715, 862 N.Y.S.2d 335, 892 N.E.2d 401 [2008] ).
The record shows that defendants received actual knowledge of the essential facts constituting the negligent supervision claim within the 90–day statutory period or within a reasonable time thereafter because the February 10, 2004 Occurrence Report was created within five days of the incident, and plaintiff testified at a General Municipal Law § 50–h hearing that she and her mother spoke with the principal of the school about the incident on February 9, 2004 (see Alvarez v. New York City Health & Hosps. Corp. [North Cent. Bronx Hosp.], 101 A.D.3d 464, 955 N.Y.S.2d 330 [1st Dept.2012] ; Matter of Whittaker v. New York City Bd. of Educ., 71 A.D.3d 776, 896 N.Y.S.2d 171 [2d Dept.2010] ; Matter of Allende v. City of New York, 69 A.D.3d 931, 894 N.Y.S.2d 472 [2d Dept.2010] ).
Furthermore, defendants failed to establish that they would be substantially prejudiced if plaintiff's motion was granted. Defendants have not demonstrated that any necessary witness is unavailable or that they are unable to obtain information from any investigation conducted by the City of New York (see Matter of Kellel B. v. New York City Health & Hosps. Corp., 122 A.D.3d 495, 497, 997 N.Y.S.2d 50 [1st Dept.2014] ; Gibbs v. City of New York, 22 A.D.3d 717, 719–720, 804 N.Y.S.2d 393 [2d Dept.2005] ).
TOM, J.P., MAZZARELLI, ANDRIAS, MANZANET–DANIELS, GESMER, JJ., concur.