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MOTION TO DEEM NOTICE OF CLAIM FILED ONE DAY LATE TIMELY SHOULD HAVE BEEN GRANTED (FIRST DEPT)

The First Department, reversing Supreme Court, determined petitioner’s motion to deem the notice of claim timely filed should have been granted even if the excuse for the delay was not reasonable. The notice of claim was one day late:

CUCF [defendant City University Construction Fund] acquired actual notice of the essential facts constituting the claim within a reasonable time after the expiration of the 90-day statute of limitations period due to the fact that petitioner filed his notice of claim only one day late, on the 91st day after the accident occurred. Moreover, the notice of claim provides the essential facts constituting the claim and further describes CUCF’s alleged negligence and alleged violations of Labor Law §§ 240(1), 241(6) and 200, and certain Industrial Code provisions.

Additionally, petitioner has demonstrated that his one-day delay in serving the notice of claim on CUCF did not substantially prejudice CUCF’s defense on the merits. CUCF had actual knowledge of the facts constituting petitioner’s claim only one day after the expiration of the 90-day statutory period and thus, had ample opportunity to conduct a thorough investigation. …

Even if petitioner’s excuse for the delay in filing the notice of claim, specifically, that such delay was due to a clerical error made by the process server, was unreasonable, “the absence of a reasonable excuse is not, standing alone, fatal to the application,” especially in a case such as this one where respondent had actual notice of the essential facts constituting petitioner’s claim and where respondent was not prejudiced by the delay … . Matter of Dominguez v City Univ. of N.Y., 2018 NY Slip Op 08084, First Dept 11-27-18

MUNICIPAL LAW (NOTICE OF CLAIM, MOTION TO DEEM NOTICE OF CLAIM FILED ONE DAY LATE TIMELY SHOULD HAVE BEEN GRANTED (FIRST DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO DEEM NOTICE OF CLAIM FILED ONE DAY LATE TIMELY SHOULD HAVE BEEN GRANTED (FIRST DEPT))/LABOR LAW-CONSTRUCTION LAW (MUNICIPAL LAW, (NOTICE OF CLAIM, MOTION TO DEEM NOTICE OF CLAIM FILED ONE DAY LATE TIMELY SHOULD HAVE BEEN GRANTED (FIRST DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW,  MOTION TO DEEM NOTICE OF CLAIM FILED ONE DAY LATE TIMELY SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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