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CLAIMANT’S APPLICATION TO SERVE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, DESPITE THE ABSENCE OF A VALID EXCUSE FOR THE DELAY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner’s application to serve a late notice of claim with respect to one of the two defendants (Albany Port District Commission) should have been granted. Although the excuse for failure to file was inadequate (ignorance of the requirement), the defendant had timely notice of the claim by virtue of surveillance cameras and an incident report, and defendant was not prejudiced by the delay:

… [M]embers of the Port Security Department came to the scene of the accident soon after petitioner’s fall to check on his condition and were able to observe the area where petitioner fell. Petitioner also averred that the Port Security Department was located approximately one hundred feet from where he fell and that there are surveillance cameras on the Port Security Department office building that are pointed at the area where petitioner fell. Petitioner also proffered an incident report form completed by one of the members of the Port Security Department who came to the scene the day of the accident. This form reflects the location of petitioner’s fall and that petitioner fell on ice, injured his back and was transported to the hospital by an ambulance. Thus, the Port had “more than merely generalized awareness of an accident and injuries” sufficient to establish actual notice … . …

… [T]he … standard requires a petitioner to initially “present some evidence or plausible argument that supports a finding of no substantial prejudice” … . Here, petitioner met this burden by showing … that the Port had actual notice of the incident sufficient to allow it to investigate the accident shortly after it occurred … . Additionally, petitioner submitted photographs and a video that suggest that the condition has not substantially changed from its appearance at the time of the accident. Matter of Perkins v Albany Port Dist. Commn., 2020 NY Slip Op 07963, Third Dept 12-24-20

 

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