Opinion
10221N-10221NA Index 101935/16
10-29-2019
In re Justin MONTERO, Petitioner–Appellant, v. The CITY OF NEW YORK, Respondent–Respondent.
Pollack, Pollack, Isaac & DeCicco LLP, New York (Brian J. Isaac of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Antonella Karlin of counsel), for respondent.
Pollack, Pollack, Isaac & DeCicco LLP, New York (Brian J. Isaac of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Antonella Karlin of counsel), for respondent.
Richter, J.P., Gische, Tom, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Margaret A. Chan, J.), entered June 2, 2017, which, to the extent appealable, denied petitioner's motion to renew his application for leave to file a late notice of claim against respondent, unanimously reversed, on the law and the facts, without costs, and the application granted. Appeal from order, same court and Justice, entered on or about January 18, 2017, which denied petitioner's motion for leave to file a late notice of claim against respondent, unanimously dismissed, without costs, as academic.
In this action for personal injuries, petitioner alleges that on May 31, 2016, he tripped and fell in a hole in a soccer field at the East River Park, suffering injury. Respondent the City of New York (City) owns and maintains the accident location. Petitioner's assertion that he was unaware of the requirement that he file a notice of claim within 90 days of his accident is not a reasonable excuse for failing to file a timely notice (see Gaudio v. City of New York , 235 A.D.2d 228, 651 N.Y.S.2d 530 [1st Dept. 1997] ). His contention that his injuries prevented him from timely filing a notice of claim is not an acceptable excuse, because he failed to provide any medical documentation to support his claimed incapacity (see Moran v. New York City Hous. Auth. , 224 A.D.2d 257, 257–258, 637 N.Y.S.2d 698 [1st Dept. 1996] ; Matter of Green v. New York City Hous. Auth. , 180 A.D.2d 586, 587, 580 N.Y.S.2d 743 [1st Dept. 1992] ). Notwithstanding, his failure to establish a reasonable excuse for not timely filing a notice of claim is not fatal (see Matter of Thomas v. City of New York , 118 A.D.3d 537, 538, 988 N.Y.S.2d 152 [1st Dept. 2014] ).
The City obtained actual notice of the accident within a reasonable time after the 90–day period expired (see Pendley v. City of New York , 119 A.D.3d 410, 988 N.Y.S.2d 488 [1st Dept. 2014] ). It does not contest petitioner's assertion that the condition of the hole remained unchanged at the time he sought leave (see Matter of Richardson v. New York City Hous. Auth. , 136 A.D.3d 484, 485, 24 N.Y.S.3d 308 [1st Dept. 2016], lv denied 28 N.Y.3d 905, 45 N.Y.S.3d 373, 68 N.E.3d 102 [2016] ). Although petitioner does not address whether anyone saw the accident, the bare claim that the delay would make it difficult for the City to locate witnesses is insufficient to establish prejudice (see Matter of Newcomb v. Middle Country Cent. Sch. Dist. , 28 N.Y.3d 455, 467–468, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016] ; Lisandro v. New York City Health & Hosps. Corp. [Metropolitan Hosp. Ctr.] , 50 A.D.3d 304, 855 N.Y.S.2d 74 [1st Dept. 2008], lv denied 10 N.Y.3d 715, 862 N.Y.S.2d 335, 892 N.E.2d 401 [2008] ).