Opinion
01-26-2015
In re Pedro SOSA, etc., Petitioner–Respondent, v. The CITY OF NEW YORK, Respondent–Appellant.
Zachary W. Carter, Corporation Counsel, New York (Dona B. Morris of counsel), for appellant. Sullivan Papain Block McGrath & Cannavo, P.C., New York (Stephen C. Glasser of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York (Dona B. Morris of counsel), for appellant.
Sullivan Papain Block McGrath & Cannavo, P.C., New York (Stephen C. Glasser of counsel), for respondent.
MAZZARELLI, J.P., RENWICK, DeGRASSE, RICHTER, CLARK, JJ.
Opinion Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 11, 2013, which granted petitioner's application for leave to file a late notice of claim asserting causes of action for personal injury and conscious pain and suffering, unanimously affirmed, without costs.
The court providently exercised its discretion by granting petitioner's motion for leave to file a late notice of claim (see Rosario v. New York City Health & Hosps. Corp., 119 A.D.3d 490, 990 N.Y.S.2d 506 [1st Dept.2014] ; General Municipal Law § 50–e[5] ). We note that petitioner timely filed a notice of claim for wrongful death arising from the multi-vehicle accident allegedly caused by the respondent's failure to prevent or remedy the icy accumulation upon a public roadway (see GML § 50–e[1][a] ). Moreover, with respect to the pain and suffering and conscious pain and suffering claims, “death is a statutory ground for granting leave to file a late notice of claim provided there is no substantial prejudice to the public corporation” (Matter of Morton v. New York
City Health & Hosps. Corp., 24 A.D.3d 229, 230, 808 N.Y.S.2d 162 [1st Dept.2005], citing GML § 50–e[5] ). Here, the record indicates that respondent's police department's accident investigation squad conducted a comprehensive investigation at the accident scene, including the taking of multiple witness statements and color photographs, and preparing several accident reports, wherein each of the witnesses attributed the cause of the accident to the icy conditions of the roadway. Under these circumstances, we conclude that respondent acquired knowledge of the facts underlying the claim, and has not established that it has been substantially prejudiced (see e.g. Matter of Caridi v. New York Convention Ctr. Operating Corp., 47 A.D.3d 526, 849 N.Y.S.2d 261 [1st Dept.2008] ; Gamoneda v. New York City Bd. of Educ., 259 A.D.2d 348, 687 N.Y.S.2d 46 [1st Dept.1999] ; Matter of Franco v. Town of Cairo, 87 A.D.3d 799, 800–801, 928 N.Y.S.2d 396 [3d Dept.2011] ).
We further find that petitioner reasonably relied on his first law firm to act to protect the estate's interests, and upon learning that it had not done so, fired the firm and moved promptly to secure present counsel, which timely filed a notice of claim as to wrongful death, and commenced the instant proceeding immediately thereafter. Even if petitioner had not proffered a reasonable excuse for the delay, such a failure alone is not fatal to his application (see Rosario, 119 A.D.3d at 490, 990 N.Y.S.2d 506 ; Matter of Thomas v. City of New York, 118 A.D.3d 537, 537–538, 988 N.Y.S.2d 152 [1st Dept.2014] ).
We have considered respondent's remaining arguments, and find them unavailing.