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FIREFIGHTER’S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined that the firefighter's rule did not preclude a suit by a police officer (Stockbower) who allegedly was injured stepping out of his van into a depressed area around a sewer grate. The court further determined defendant city did not demonstrate it did not have constructive notice of the depressed area:

The negligence cause of action is not barred by the firefighters' rule, because the risk of injury was not increased by Slockbower's performance of his official duties … . Slockbower had parked the van in order to direct traffic, but was not actually doing so when he fell … . Although Slockbower admitted that he did not see the depressed sewer grate because he was “[l]ooking to see if there were any cars going by,” and not at the ground, it is clear from the context of this statement that he was not looking at the cars for the purpose of directing traffic, but in order to exit the van safely.

Defendants established prima facie that they neither caused nor had actual notice of the depressed sewer grate. However, they failed to establish as a matter of law that they had no constructive notice of it … . They submitted no evidence of any prior inspections … . Moreover, they submitted photographs of the grate taken within weeks after the accident that Slockbower testified fairly and accurately depicted the site as it appeared on the day of the accident … . Because the nature of the defect, as depicted in the photographs, is not latent, and the defect would not have developed overnight, constructive notice may be inferred from its existence … . Genova v City of New York, 2018 NY Slip Op 06813, First Dept 10-11-18

NEGLIGENCE (MUNICIPAL LAW, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))/MUNICIPAL LAW (NEGLIGENCE, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))/FIREFIGHTER'S RULE (NEGLIGENCE, MUNICIPAL LAW, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))/POLICE OFFICERS (NEGLIGENCE, MUNICIPAL LAW, FIREFIGHTER'S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT))

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PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT).

The Second Department determined the petition for leave to file a late notice of claim in this sidewalk slip and fall case was properly denied. The medical-treatment excuse was inadequate. The late notice of claim which petitioner attempted to serve on the city was rejected. It therefore was a nullity which would not be deemed to inform the city of the nature of the claim. The petitioner was unable to show the city was not prejudiced by the delay:

Contrary to the petitioner's contention, she failed to demonstrate that her injuries and medical care constituted a reasonable excuse for her failure to timely serve a notice of claim. Rather, the medical evidence she submitted in support of her petition demonstrated that she had substantially healed and no longer required any pain medication long before the expiration of the statutory 90-day period for timely filing her notice of claim. Thus, she failed to medically substantiate that her injury and treatment prevented her from making timely service, or that she did not learn of the full extent of her injuries until after the statutory period had expired … . Furthermore, the petitioner failed to establish any reasonable excuse for her additional nine-month delay in seeking leave to serve a late notice of claim after her original notice of claim was rejected as untimely … .

Similarly, we agree with the Supreme Court's determination that the respondents did not acquire actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter by reason of the late notice of claim which the respondents rejected as untimely. “A late notice of claim served without leave of court is a nullity”… . Under the circumstances presented, where the respondents rejected the notice of claim and disallowed the claim based on the untimely service, the petitioner's late notice of claim did not provide the respondents with actual knowledge … .

Additionally, given the transitory nature of the defect upon which the petitioner allegedly fell… , she failed to sustain her initial burden of presenting “some evidence or plausible argument” … that granting the petition would not substantially prejudice the respondents in maintaining their defense on the merits … . Matter of Ashkenazie v City of New York, 2018 NY Slip Op 06734, Second Dept 10-10-18

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, SLIP AND FALL, LATE NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))

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PROBATIONARY CITY EMPLOYEE WAS NOT GIVEN SEVEN DAYS NOTICE OF HIS TERMINATION, REMEDY IS TO PAY THE EMPLOYEE FOR THE SEVEN DAYS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner, a probationary city employee, was not given the requisite seven day's notice of termination. The remedy was to provide petitioner with seven days pay:

… [T]he petitioner correctly contends that, in terminating his employment, the City failed to comply with 4 NYCRR 4.5(b)(5)(iii). That regulation requires, among other things, that a probationer who is to be discharged from employment for unsatisfactory service receive written notice at least one week prior to termination (see 4 NYCRR 4.5[b][5][iii]). Here, the petitioner received written notice on the day his employment was terminated, and the City did not rebut the petitioner's assertion that he had not received oral notice prior to that date. Accordingly, it cannot be said that the City substantially complied with 4 NYCRR 4.5(b)(5)(iii)… .

Under the circumstances of this case, including that the petitioner was deprived of the required seven days' notice but was notified of his discharge prior to the expiration of his period of probation … , we deem it appropriate to award him the relief he has requested on appeal for the failure to comply with 4 NYCRR 4.5(b)(5)(iii), specifically, one day's pay, at the salary he was earning at the time of his discharge, for each of the seven days he was not provided the requisite notice … . The Court of Appeals has determined that such a remedy is appropriate in the analogous context in which a school authority fails to give a probationary teacher 30 days' written notice of termination, as required by Education Law § 3019-a … . Seven days of pay is what the petitioner would have received had the City complied with the applicable regulation by making the petitioner's discharge effective seven days after it provided the written notice. Matter of Santucci v City of Mount Vernon, 2018 NY Slip Op 06745, Second Dept 10-10-18

MUNICIPAL LAW (EMPLOYMENT LAW, PROBATIONARY CITY EMPLOYEE WAS NOT GIVEN SEVEN DAYS NOTICE OF HIS TERMINATION, REMEDY IS TO PAY THE EMPLOYEE FOR THE SEVEN DAYS (SECOND DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, PROBATIONARY CITY EMPLOYEE WAS NOT GIVEN SEVEN DAYS NOTICE OF HIS TERMINATION, REMEDY IS TO PAY THE EMPLOYEE FOR THE SEVEN DAYS (SECOND DEPT))

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PETITIONER’S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioner's request for leave to file a late notice of claim in a potential Labor Law 200, 240 (1) and 241 (6) action should not have been granted. Petitioner was struck by a falling plank when he was standing on a scaffold during renovation work at a school:

Although the petitioner made no attempt to proffer a reasonable excuse for the failure to serve a timely notice claim, “[n]either the presence nor absence of any one factor is determinative”; thus, “[t]he absence of a reasonable excuse is not necessarily fatal” … .

The petitioner failed to establish that the municipal parties acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual, or within a reasonable time thereafter. Notably, the record is devoid of evidence showing that any of the municipal parties was aware, prior to the commencement of this proceeding, that the petitioner's accident had occurred—let alone that the petitioner was claiming violations of Labor Law §§ 200, 240(1), and 241(6) … . Contrary to the petitioner's contention, a delay of four months following the expiration of the 90-day notice period does not constitute a “reasonable time” within the meaning of General Municipal Law § 50-e(5) … .

Further, the petitioner failed to present “some evidence or plausible argument” supporting a finding that the municipal parties were not substantially prejudiced by the four-month delay from the expiration of the 90-day statutory period … . Matter of Moroz v City of New York, 2018 NY Slip Op 06743, Second Dept 10-10-18

NEGLIGENCE (PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, EDUCATION-SCHOOL LAW, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LABOR LAW-CONSTRUCTION LAW (MUNICIPAL LAW, EDUCATION-SCHOOL LAW, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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TOWN DID NOT HAVE WRITTEN NOTICE OF A RUSTY DRAINAGE PIPE IN THE WATER AT A TOWN BEACH AND WAS THEREFORE NOT LIABLE FOR THE INJURY TO THE INFANT PLAINTIFF WHO CUT HIS FOOT ON THE PIPE WHEN WALKING IN THE WATER (SECOND DEPT). ​

The Second Department determined a rusty drainage pipe under the water at a town beach was a culvert within the meaning of the town code, requiring written notice of the condition before the town could be held liable for an injury, Infant plaintiff cut his foot on the pipe when he was walking in the water:

… [T]he Town demonstrated by the submission of the affidavit of its expert engineer, that the drainage pipe at issue is a culvert and, thus, falls within the ambit of the statute. In opposition, the plaintiffs failed to raise a triable issue of fact as to the nature of the subject drainage pipe.

“A municipality that has adopted a prior written notice law cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” … . “The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property” … .

Insofar as is relevant here, the Town established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not have prior written notice of the alleged defect through the submission of, inter alia, the affidavit of an employee of the Town's Department of Highways, who averred that his search of the Town's records revealed no prior written notice of any hazardous condition of the culvert where the accident occurred … . Coventry v Town of Huntington, 2018 NY Slip Op 06715, Second Dept 10-10-18

NEGLIGENCE (TOWN DID NOT HAVE WRITTEN NOTICE OF A RUSTY DRAINAGE PIPE IN THE WATER AT A TOWN BEACH AND WAS THEREFORE NOT LIABLE FOR THE INJURY TO THE INFANT PLAINTIFF WHO CUT HIS FOOT ON THE PIPE WHEN WALKING IN THE WATER (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, WRITTEN NOTICE, TOWN DID NOT HAVE WRITTEN NOTICE OF A RUSTY DRAINAGE PIPE IN THE WATER AT A TOWN BEACH AND WAS THEREFORE NOT LIABLE FOR THE INJURY TO THE INFANT PLAINTIFF WHO CUT HIS FOOT ON THE PIPE WHEN WALKING IN THE WATER (SECOND DEPT))

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TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER’S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER’S PROPERTY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, determined that the town's attempt to recover consulting fees and set up an escrow account in connection the petitioner's requests for a special use permit and a variance to construct an antenna for a ham radio exceeded the town's authority and was preempted by a federal regulation:

The petitioner is an amateur radio hobbyist who applied for a special use permit and an area variance that would allow him to construct a radio antenna structure on his property in the Town of LaGrange. The Town incurred more than $17,000 in legal consulting fees in connection with the applications, and informed the petitioner that he was required to reimburse the Town for these fees before any determination would be made with respect to the applications. The Town subsequently, as “an accommodation to the petitioner,” reduced the amount that it was demanding for previously incurred fees to the sum of $5,874, but also required the petitioner to maintain a minimum advance continuing escrow balance of at least $1,000 to cover the Town's future consulting costs in connection with the applications. We hold that, because the Town did not limit the consulting fees charged to the petitioner to those necessary to the decision-making function of the Town's Planning Board and Zoning Board of Appeals, the Town exceeded its State-granted authority by requiring payment of the consulting fees and, moreover, violated a rule promulgated by the Federal Communications Commission. Matter of Landstein v Town of LaGrange, 2018 NY Slip Op 06741, Second Dept 10-10-18

MUNICIPAL LAW (TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER'S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER'S PROPERTY (SECOND DEPT))/ZONING  (TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER'S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER'S PROPERTY (SECOND DEPT))/CONSTITUTIONAL LAW (PREEMPTION, MUNICIPAL LAW, TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER'S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER'S PROPERTY (SECOND DEPT))/SPECIAL USE PERMIT (TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER'S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER'S PROPERTY (SECOND DEPT))/VARIANCE (TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER'S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER'S PROPERTY (SECOND DEPT))/ANTENNA (TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER'S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER'S PROPERTY (SECOND DEPT))/RADIO (HAM RADIO ANTENNA, TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER'S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER'S PROPERTY (SECOND DEPT))

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MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF’S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff's motion for leave to amend her notice of claim in this slip and fall case should have been granted:

“[I]n making a determination on the sufficiency of a notice of claim, a court's inquiry is not limited to the four corners of the notice of claim” … . “A court may consider the testimony provided during an examination conducted pursuant to General Municipal Law § 50-h and any other evidence properly before it to correct a good faith and nonprejudicial technical mistake, omission, irregularity, or defect in the notice of claim” … . Where the defendant is provided with such evidence correcting the notice of claim within a reasonable time after the accident, there is no prejudice… .

Here, the defendant did not demonstrate, prima facie, that the notice of claim was insufficient. The information contained in the notice of claim, supplemented by the testimony of the plaintiff given a few months thereafter at the General Municipal Law § 50-h hearing, was sufficient to allow the defendant to conduct a meaningful investigation into the plaintiff's claim … .

Moreover, the defendant did not demonstrate, prima facie, that it would be prejudiced by the plaintiff's proposed amendment to the notice of claim, which was to state the address of the accident. The plaintiff had testified that there were witnesses to the accident. As such, the defendant could have ascertained the location of the accident ” with a modicum of effort'” … . Moreover, the defendant did not submit any evidence demonstrating that it was misled by the error, or that it conducted an investigation at the wrong location … . Finally, even if the original notice of claim had contained the address of the defect, the plaintiff testified that the road was resurfaced approximately three weeks after her fall, which was prior to service of the notice of claim … . Ruark v City of Glen Cove, 2018 NY Slip Op 06286, Second Dept 9-26-18

NEGLIGENCE (MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (NEGLIGENCE, SLIP AND FALL, MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim in this slip and fall case should have been granted. Petitioner alleged she tripped and fell over unsecured floor mats as she was leaving the school after her grandson's basketball game. The Second Department noted that the school had done an investigation and thereby had timely notice of the facts of the claim:

… [A]lthough the petitioner's notice of claim was not served within 90 days of the accident, the respondent acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident … . In fact, the respondent conducted an investigation into whether it was a proper defendant in a personal injury action. In addition, the petitioner made an initial showing that the respondent was not substantially prejudiced by the delay, since the respondent acquired timely, actual knowledge of the essential facts constituting the claim within the 90-day period, conducted an investigation, and notified its insurance carrier of the accident … .

In opposition, the respondent failed to make a particularized evidentiary showing that it would be substantially prejudiced if the late notice was allowed … . The respondent's contention that it was prejudiced because the particular mats over which the petitioner tripped had been replaced after the accident is without merit. The record shows that the respondent's Director of Facilities sent an email on the morning following the petitioner's accident in which he indicated that he was aware of the fact that the petitioner tripped over the mats in the vestibule. Contrary to the respondent's contention, any prejudice resulting from the replacement of the subject mats was due to the respondent's practice of changing the mats on a weekly basis rather than from the petitioner's delay in serving a notice of claim. Under these circumstances, the failure of the respondent to inspect the mats that were on the ground on the date of the petitioner's accident was not caused by the delay in serving a notice of claim … .

…[W]hile the excuses proffered by the petitioner for her failure to file a timely notice of claim were not reasonable, the absence of a reasonable excuse is not in and of itself fatal to the petition where, as here, there was actual notice and an absence of prejudice … . Matter of Messick v Greenwood Lake Union Free Sch. Dist., 2018 NY Slip Op 06244, Second Dept 9-26-18

EDUCATION-SCHOOL LAW (SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, SLIP AND FALL, SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT))/MUNICIPAL LAW (NOTICE OF CLAIM, SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, SLIP AND FALL, SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT))/SLIP AND FALL  (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT))

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MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF’S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff's motion for leave to amend her notice of claim in this slip and fall case should have been granted.

“[I]n making a determination on the sufficiency of a notice of claim, a court's inquiry is not limited to the four corners of the notice of claim” … . “A court may consider the testimony provided during an examination conducted pursuant to General Municipal Law § 50-h and any other evidence properly before it to correct a good faith and nonprejudicial technical mistake, omission, irregularity, or defect in the notice of claim” … . Where the defendant is provided with such evidence correcting the notice of claim within a reasonable time after the accident, there is no prejudice… .

Here, the defendant did not demonstrate, prima facie, that the notice of claim was insufficient. The information contained in the notice of claim, supplemented by the testimony of the plaintiff given a few months thereafter at the General Municipal Law § 50-h hearing, was sufficient to allow the defendant to conduct a meaningful investigation into the plaintiff's claim … .

Moreover, the defendant did not demonstrate, prima facie, that it would be prejudiced by the plaintiff's proposed amendment to the notice of claim, which was to state the address of the accident. The plaintiff had testified that there were witnesses to the accident. As such, the defendant could have ascertained the location of the accident ” with a modicum of effort'” … . Moreover, the defendant did not submit any evidence demonstrating that it was misled by the error, or that it conducted an investigation at the wrong location … . Finally, even if the original notice of claim had contained the address of the defect, the plaintiff testified that the road was resurfaced approximately three weeks after her fall, which was prior to service of the notice of claim … . Ruark v City of Glen Cove, 2018 NY Slip Op 06286, Second Dept 9-26-18

NEGLIGENCE (MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (NEGLIGENCE, SLIP AND FALL, MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF'S SLIP AND FALL SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined that an exposed root in a town park, over which plaintiff tripped and fell, was an open and obvious condition that was not actionable:

“A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property” … . A landowner, however has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the exposed tree root was an open and obvious condition which was inherent or incidental to the nature of the property, and known to [plaintiff] prior to the subject accident … . Moreover, the location of the exposed tree root in relation to the picnic table was both open and obvious and, as a matter of law, not inherently dangerous … . Ibragimov v Town of N. Hempstead, 2018 NY Slip Op 06231, Second Dept 9-26-18

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, SLIP AND FALL, EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))/SLIP AND FALL ( EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))/TREE ROOTS (SLIP AND FALL, EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))

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