Bialer v. City of New York

Appellate Division of the Supreme Court of New York

Bialer v. City of New York

23 A.D.3d 304, 806 N.Y.S.2d 471

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 22, 2005

StatusPublished

This text of 23 A.D.3d 304 (Bialer v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bialer v. City of New York, 23 A.D.3d 304, 806 N.Y.S.2d 471 (N.Y. Ct. App. 2005).

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Opinion

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered on or about December 28, 2004, which granted petitioner’s motion to file a late notice of claim against appellant, unanimously affirmed, without costs.

Petitioner’s failure to set forth a reasonable excuse for its failure to serve its notice of claim within the statutorily prescribed 90 days did not, under the particular circumstances at bar, require the denial of its motion for leave to serve a late notice (see Matter of Porcaro v City of New York, 20 AD3d 357, 358 [305]*305[2005]). The timely referral of petitioner’s case to appellant by the State, pursuant to an indemnification agreement, afforded appellant sufficient indicia of a causal connection between the accident and its conduct, as well as an opportunity to investigate (cf. Pineda v City of New York, 305 AD2d 294 [2003]), and given the short delay beyond the statutory 90 days, appellant was not prejudiced (see Price v Herstic, 240 AD2d 151, 152 [1997]). Accordingly, the grant of petitioner’s motion constituted a proper exercise of discretion. Concur—Saxe, J.P., Marlow, Ellerin, Gonzalez and McGuire, JJ.

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Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered on or about December 28, 2004, which granted petitioner’s motion to file a late notice of claim against appellant, unanimously affirmed, without costs.

Petitioner’s failure to set forth a reasonable excuse for its failure to serve its notice of claim within the statutorily prescribed 90 days did not, under the particular circumstances at bar, require the denial of its motion for leave to serve a late notice (see Matter of Porcaro v City of New York, 20 AD3d 357, 358 [305]*305[2005]). The timely referral of petitioner’s case to appellant by the State, pursuant to an indemnification agreement, afforded appellant sufficient indicia of a causal connection between the accident and its conduct, as well as an opportunity to investigate (cf. Pineda v City of New York, 305 AD2d 294 [2003]), and given the short delay beyond the statutory 90 days, appellant was not prejudiced (see Price v Herstic, 240 AD2d 151, 152 [1997]). Accordingly, the grant of petitioner’s motion constituted a proper exercise of discretion. Concur—Saxe, J.P., Marlow, Ellerin, Gonzalez and McGuire, JJ.

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23 A.D.3d 304, 806 N.Y.S.2d 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bialer-v-city-of-new-york-nyappdiv-2005.

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