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ALTHOUGH COUNSEL’S FAILURE TO IDENTIFY THE PROPER PARTY TO SUE WAS ARGUABLY NOT EXCUSABLE, THE DEFENDANT HAD TIMELY KNOWLEDGE OF THE NATURE OF THE ACTION AND WAS NOT PREJUDICED BY THE DELAY; THE APPLICATION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s application to file a late notice of claim in this slip and fall case should have been granted. Although the excuse for not filing on time was not a good one, counsel’s failure to identify the proper party to sue, the defendant had timely knowledge of the nature of the action:

Although counsel’s error in identifying the proper party was arguably not excusable, the error was not due to any fault or delay on the part of petitioner, and “[t]he failure to set forth a reasonable excuse is not, by itself, fatal to the application” … . This is particularly true where, as here, the record shows that respondents received timely and actual notice of the essential facts underlying plaintiff’s claim … .

Here, the incident report gave respondents actual knowledge of the pertinent facts constituting the claim. The report makes clear that petitioner fell on the sidewalk, and the photographs contained in the report show that the sidewalk is cracked and raised, presenting a tripping hazard … . Furthermore, according to petitioner’s 50-h testimony, her fall was notable enough that a security guard immediately called his supervisor to the scene, and there is no indication that respondents are prejudiced by the delay … . English v Board of Trustees of the Fashion Inst. of Tech., 2020 NY Slip Op 05450, First Dept 10-6-20

 

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Plaintiff Cannot Proceed With Case Taking a Position Different from That Taken in a Prior Action
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