Pendley v. City of New York , 988 N.Y.S.2d 488 ( 2014 )

Pendley v City of New York (2014 NY Slip Op 05029)

Pendley v City of New York

2014 NY Slip Op 05029

Decided on July 3, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 3, 2014
Gonzalez, P.J., Acosta, DeGrasse, Freedman, Richter, JJ.

12960N 100629/12

[*1] 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.

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 AD2d 212, 213 [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 AD3d 445 [1st Dept 2012]; Fredrickson v New York City Hous.

Auth., 87 AD3d 425 [1st Dept 2011]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 3, 2014

DEPUTY CLERK