Opinion
July 8, 1993
Appeal from the Supreme Court, Bronx County (Lewis R. Friedman, J.).
General Municipal Law § 50-e (5) enumerates certain factors which the court should consider in making a determination on a request for an exemption from the 90 day filing requirement for a notice of claim, of which the key considerations are "whether the petitioner has demonstrated a reasonable excuse for failure to serve a timely notice of claim, whether the [public corporation] acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the [public corporation] in maintaining its defense on the merits" (Matter of Charles v. New York City Health Hosps. Corp., 166 A.D.2d 526, 527).
In this case, we find that the IAS Court's denial of the petition to serve a late notice was an improvident exercise of its discretion. First, the IAS Court erred by requiring, in addition to the statutory factors, that petitioner offer evidence establishing that she had a meritorious claim against respondent (see, supra; Matter of Parco v. City of New York, 160 A.D.2d 581, 583; Hamm v. Memorial Hosp., 99 A.D.2d 638, 639; Passalacqua v County of Onondaga, 94 A.D.2d 949; see also, Matter of Feliciano v. New York City Hous. Auth., 188 A.D.2d 296, 297). Moreover, a review of the appropriate factors reveals that the petition should have been granted. First, the lateness of the notice was due to petitioner's disabling injuries, which prevented her from taking any but the most rudimentary steps to protect her claim, and prevented her from conducting an investigation adequate to identify the proper municipal corporation against which the claim should be asserted (see, Baldeo v. City of New York, 127 A.D.2d 809; Nordman v. East Greenbush Cent. School Dist., 75 A.D.2d 958, 959). Furthermore, the record indicates that respondent received timely actual notice of the essential facts giving rise to its potential liability, as the accident report prepared by the police officer who aided petitioner at the scene noted that he personally informed a Transit Authority officer of the dangerous icy condition of the subway entrance at which petitioner was injured (cf., Evans v New York City Hous. Auth., 176 A.D.2d 221, appeal dismissed 79 N.Y.2d 886, lv denied 79 N.Y.2d 754). Finally, the transient nature of the defective condition which allegedly caused petitioner's fall, i.e., snow and ice, meant that respondent would have been unable to investigate even had the notice been served within the prescribed 90 days (see, Rosenblatt v. City of New York, 160 A.D.2d 927, 928). Under such circumstances, we find that petitioner's lateness should be excused pursuant to General Municipal Law § 50-e (5).
Concur — Milonas, J.P., Rosenberger, Ellerin and Kupferman, JJ.