Opinion
2014-07-3
Lingsworth PENDLEY, Plaintiff–Respondent, v. The CITY OF NEW YORK, et al., Defendants–Appellants.
Barry, McTiernan & Moore, New York (Laurel A. Wedinger of counsel), for appellants. Frekhtman & Associates, Brooklyn (Stephen J. Smith of counsel), for respondent.
Barry, McTiernan & Moore, New York (Laurel A. Wedinger of counsel), for appellants. Frekhtman & Associates, Brooklyn (Stephen J. Smith of counsel), for respondent.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered November 28, 2012, which granted plaintiff's motion to have his late notice of claim deemed timely served nunc pro tunc, unanimously affirmed, without costs.
The motion court did not improvidently exercise its discretion in granting plaintiff's motion, in this action where plaintiff alleges that he was injured when he tripped and fell on defendants' stairs. Although plaintiff did not provide a reasonable excuse for failing to timely serve the notice of claim, such failure, by itself, is not fatal to the motion ( see e.g. Weiss v. City of New York, 237 A.D.2d 212, 213, 655 N.Y.S.2d 34 [1st Dept.1997] ). Rather, the record demonstrates that there was a relatively short delay in the filing of the notice of claim, which provided actual notice of the accident within a reasonable time after the 90–day period expired. Furthermore, defendants did not address plaintiff's showing that defendants would not be prejudiced because the condition of the steps had not changed since the accident ( see Matter of Mercado v. City of New York, 100 A.D.3d 445, 953 N.Y.S.2d 206 [1st Dept.2012];Fredrickson v. New York City Hous. Auth., 87 A.D.3d 425, 927 N.Y.S.2d 913 [1st Dept.2011] ). GONZALEZ, P.J., ACOSTA, DeGRASSE, FREEDMAN, RICHTER, JJ., concur.