Opinion
2012-11-8
In re Jeanelin MERCADO, etc., Petitioner–Respondent, v. CITY OF NEW YORK, Respondent, New York City Housing Authority, Respondent–Appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Richard E. Lerner of counsel), for appellant. Law Offices of Joel L. Getreu, P.C., New York (Willard G. LaFauci of counsel), for respondent.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Richard E. Lerner of counsel), for appellant. Law Offices of Joel L. Getreu, P.C., New York (Willard G. LaFauci of counsel), for respondent.
MAZZARELLI, J.P., FRIEDMAN, CATTERSON, RENWICK, FREEDMAN, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered January 10, 2012, which granted petitioner's motion for leave to file a late notice of claim to the extent of permitting her to file it against respondent New York City Housing Authority (respondent), unanimously affirmed, without costs.
The court providently exercised its discretion in granting petitioner leave to file a late notice of claim. The accident giving rise to the claim occurred on December 28, 2010 when the decedent, petitioner's father, allegedly slipped and fell on a walkway due to the accumulation of snow and ice. Respondent was served with the notice of claim on May 6, 2011, less than 6 weeks after expiration of the 90–day filing requirement ( see Matter of Caridi v. New York Convention Ctr. Operating Corp., 47 A.D.3d 526, 849 N.Y.S.2d 261 [1st Dept. 2008];Weiss v. City of New York, 237 A.D.2d 212, 213, 655 N.Y.S.2d 34 [1st Dept. 1997] ).
Although petitioner did not elaborate on her reason for failing to timely serve the notice, this failure is not, by itself, fatal to the motion ( see Weiss, 237 A.D.2d at 213, 655 N.Y.S.2d 34). Petitioner established that the late notice was sufficient to serve as actual knowledge of the claim and it was served within a reasonable time after the 90 days expired ( id.). Additionally, respondent has not established any prejudice. Its bare claim that the delay has made it difficult to locate witnesses is insufficient ( see Lisandro v. New York City Health and Hospitals Corp., 50 A.D.3d 304, 855 N.Y.S.2d 74 [1st Dept. 2008],lv. denied10 N.Y.3d 715, 862 N.Y.S.2d 335, 892 N.E.2d 401 [2008] ). Further, the alleged defective condition is highly transitory and respondent would have been in the same position regarding any investigation even if the notice of claim had been timely served ( see Matter of Caridi, 47 A.D.3d 526, 849 N.Y.S.2d 261).
We reject respondent's argument that petitioner's claim is patently meritless. Petitioner is not required to establish conclusively the merits of the claim at this stage in the litigation ( Weiss, 237 A.D.2d at 213, 655 N.Y.S.2d 34).
We have considered respondent's remaining contention and find it unavailing.