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THE DEFENDANT “DORMITORY AUTHORITY OF NEW YORK STATE’S” INSURERS HAD ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF PLAINTIFF’S SLIP AND FALL WITHIN 90 DAYS OF THE ACCIDENT; THE PETITION FOR LEAVE TO SERVE THE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to serve a late notice of claim in this slip and fall case against the Dormitory Authority for the State of New York (DASNY) should have been granted because DASNY’s insurers had actual knowledge of the facts of the within 90 days of the accident:

… [T]he petitioner’s submissions demonstrated that DASNY’s insurers had actual notice of the essential facts constituting the claim within 90 days of the petitioner’s accident. The petitioner annexed to the petition a copy of a certificate of liability insurance stating that his employer was insured under a number of policies in connection with the construction project at the premises and identifying both DASNY and the State as “Additional Insureds” with respect to the project. The petitioner also annexed to the petition a letter dated July 8, 2019, approximately 70 days after the accident, in which the State informed the insurers named in the certificate of liability insurance that a notice of claim concerning the petitioner’s accident had been served on the State on or about June 14, 2019. The notice of claim that had been served on the State identifies the date, time, and location of the petitioner’s accident, describes the petitioner’s injuries, and specifies construction debris on the stairwell as the dangerous condition which caused the petitioner’s accident. Thus, DASNY’s insurers acquired actual notice of the essential facts constituting the petitioner’s claim within 90 days of his accident (see General Municipal Law § 50-e[5] …). Matter of Joseph v City of New York, 2022 NY Slip Op 05318, Second Dept 9-28-22

Practice Point: A slip and fall lawsuit against the Dormitory Authority of the State of New York (DANYS) must be preceded by service of a notice of claim. Here the fact that the DANYS’s insurers had been given notice of the essential facts of the slip and fall within 90 days of the accident was a sufficient ground for leave to serve a late notice of claim.

 

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