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APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED DESPITE ABSENCE OF A REASONABLE EXCUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s application for leave to file a late notice of claim should have been granted. Petitioner alleged he was injured by the malfunction of weightlifting equipment at a city recreation center:

Assuming that the law firm’s clerical error was not a reasonable excuse, ” [t]he absence of a reasonable excuse is not, standing alone, fatal to the application,'” where the municipal respondent had actual notice of the essential facts constituting the claim and was not prejudiced by the delay … . Here, petitioner’s affidavit stating that he signed an incident report prepared by respondent’s employee shortly after the accident, and that the weightlifting equipment was repaired a few months later, demonstrate prima facie that respondent received actual notice of the pertinent facts underlying his claim, if not the negligence claim itself, which supports a “plausible argument” that the City will not be substantially prejudiced in investigating and defending the claim … . Matter of Mercedes v City of New York, 2019 NY Slip Op 01487, First Dept 2-28-19

 

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