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] ).
Those listed factors are not intended to be exhaustive ( see Williams, 6 N.Y.3d at 535, 539, 814 N.Y.S.2d 580, 847 N.E.2d 1154). Nevertheless, the appearance of merit, a factor so critical in determining a late claim application against the State pursuant to Court of Claims Act § 10(6), is only to be considered in a review under section 50–e(5) to the extent the claim could be “patently meritless” ( see Matter of Hess v. West Seneca Cent. School Dist., 15 N.Y.3d 813, 908 N.Y.S.2d 146, 934 N.E.2d 879 [2010]; Weiss v. City of New York, 237 A.D.2d 212, 213, 655 N.Y.S.2d 34 [1997] ). Court of Claims Act § 10(6), which generally governs late claim applications in the Court of Claims, does not apply to motions for leave to file late notices of claim in litigation against Roswell Park, notwithstanding that the venue for such litigation has been placed in the Court of Claims ( see Matter of Tyson, 4 Misc.3d 556, 780 N.Y.S.2d 704 [2003] ).
Those listed factors are not intended to be exhaustive ( see Williams, 6 NY3d at 535, 539). Nevertheless, the appearance of merit, a factor so critical in determining a late claim application against the State pursuant to Court of Claims Act § 10 (6), is only to be considered in a review under section 50-e (5) to the extent the claim could be "patently meritless" ( see Matter of Hess v West Seneca Cent. School Dist., 15 NY3d 813, 814; Weiss v City of New York, 237 AD2d 212, 213). Court of Claims Act § 10 (6), which generally governs late claim applications in the Court of Claims, does not apply to motions for leave to file late notices of claim in litigation against Roswell Park, notwithstanding that the venue for such litigation has been placed in the Court of Claims (see Matter of Tyson v Roswell Park Cancer Inst. Corp., 4 Misc 3d 556 [2003]).
Three key factors have been identified as among those to be weighed in determining whether to grant such discretionary relief: whether Claimants have shown a reasonable excuse for the delay; whether Roswell Park had actual or constructive notice of the essential facts constituting the claim within 90 days of its accrual, or a reasonable time thereafter; and whether the delay would substantially prejudice the hospital in maintaining its defense ( see Nationwide Ins. Co. v Village of Alexandria Bay, 299 AD2d 855, 856; Hilton v Town of Richland, 216 AD2d 921). The appearance of merit, a significant factor in determining a late claim application against the State pursuant to Court of Claims Act § 10 (6), is only to be considered in a review under General Municipal Law § 50-e (5) when the claim is alleged to be "patently meritless" ( Weiss v City of New York, 237 AD2d 212, 213). Although Roswell Park has not challenged the application as lacking in merit, the affidavit of Gary Ian Weinberger, M.D., tendered by Claimants, supports that the proposed claim is not patently meritless.
Plaintiffs excuse for her more than year-long delay in filing a timely notice of claim — that she did not know that defendant owned the building at issue — was not reasonable. However, the lack of a reasonable excuse is not, standing alone, sufficient to deny an application for leave to serve and file a late notice of claim ( see Weiss v City of New York, 237 AD2d 212, 213), where, as here, defendant's employee witnessed the accident ( see Matter of Ansong v City of New York, 308 AD2d 333), and where defendant cannot show that it was prejudiced by the delay ( see Weiss, 237 AD2d at 213). Defendant's contention that it had no knowledge of the accident since its employee did not file an accident report because he had no reason to believe that plaintiff had been injured is unavailing where defendant had knowledge of the essential facts constituting the claim ( see General Municipal Law § 50-e).
The City maintains that the only proper party in this case is the Board of Education. As stated by the Appellate Division, First Department: "Ordinarily, courts should not delve into the merits of an action in determining an application to file a late notice except in the rare case when the claim is "patently meritless" ( Katz v. Town of Bedford, 192 AD2d 707, 708, 597 N.Y.S.2d 140).". Weiss v. The City of New York, 237 AD2d 212 (1st Dept 1997). In view of the ambiguity engendered by the recent amendments to the Education Law transferring control over the City public schools to the Chancellor controlled by the Mayor, in the context of the other provisions of the Education Law, which left in place certain provisions as to the Board of Education, it cannot be said that the claim against the City is "patently meritless" at this preliminary stage of the litigation ( see Matter of Catherine G v. County of Essex, 3 NY3d 175, 178).
Supreme Court properly denied petitioner's application for leave to file a late notice of claim against respondents the City of New York and The Fire Department, City of New York (collectively the "City") pursuant to General Municipal Law § 50–e. While courts should not usually "delve into the merits of an action in determining an application to file a late notice," here, petitioner's common law fraud claim is patently meritless ( Weiss v. City of New York, 237 A.D.2d 212, 213, 655 N.Y.S.2d 34 [1st Dept. 1997] ).Petitioner sets forth no facts at all alleging that a City employee, either during the November 21, 2015 exam or at any time before the filing of his leave application, told him something that was untrue and that he relied upon that statement to his detriment (seeVermeer Owners v. Guterman, 78 N.Y.2d 1114, 1116, 578 N.Y.S.2d 128, 585 N.E.2d 377 [1991] ).
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.
lleged post-90-day first manifestation of illness and subsequent diagnosis of PTSD do not excuse the subsequent 10-to-12-month delay in moving for leave, and that this subsequent delay was not, in any "factually demonstrable]" way ( Williams v Nassau County Med. Ctr., 6 NY3d 531, 538), caused by infancy. Indeed, we would grant leave even if the infant's injuries had immediately manifested themselves. It would be "`unfair and unjust' to deprive the infant of a remedy based on [his] mother's ignorance of the law" [Pearson v New York City Health Hosps. Corp. [Harlem Hosp. Ctr.], 43 AD3d 92, 94, affd 10 NY3d 852), where the father's timely notice of claim gave defendant actual knowledge of the essential facts constituting the infant's and mother's claims of negligent maintenance of building security ( see Heredia v City of New York, 141 AD2d 473), defendant had actual notice of the infant's and mother's claims of injuries and damages within a reasonable time after the 90-day period ( see Weiss v City of New York, 237 AD2d 212, 213 [late notice of claim served without leave provided City with actual knowledge of essential facts]; Pearson, 43 AD3d at 94 [same]), and defendant fails to explain why, as it claims, the delay has prejudiced its ability to investigate the infant's medical history ( see Heredia, 141 AD2d 473).
The record contains substantial support for the Special Referee's finding ( see RC 27th Ave. Realty Corp. v New York City Hous. Auth., 305 AD2d 135) that the incapacitated person is "unable to protect [his] legal rights because of an over-all inability to function in society" as a result of suffering a stroke, and was therefore entitled to the insanity toll of CPLR 208 ( McCarthy v Volkswagen of Am., 55 NY2d 543, 548). The toll did not terminate on the appointment of a guardian ( see Henry v City of New York, 94 NY2d 275; Costello v North Shore Univ. Hosp. Ctr. for Extended Care Rehabilitation, 273 AD2d 190). Leave to serve a late notice of claim was properly granted, notwithstanding plaintiff's failure to explain her delay, on a record establishing that defendants were not prejudiced by the delay ( see Matter of Dubowy v City of New York, 305 AD2d 320, 321; Weiss v City of New York, 237 AD2d 212, 213). We have considered defendants' other arguments and find them unavailing.