Green v. Manhattan & Bronx Surface Transit Operating Authority

164 A.D.2d 851

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 30, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered June 14, 1989, which denied claimant’s motion to file a late notice of claim on the ground that claimant had failed to offer an adequate excuse for the four-month delay in seeking such relief after she retained new counsel, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, the motion granted and claimant directed to serve her notice of claim upon Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) within 30 days of this court’s order.

On May 20, 1988, the 66-year-old claimant fell while boarding a MABSTOA bus at the intersection of 125th Street and Lenox Avenue in Harlem. Her fall was witnessed by the bus driver who stopped the bus and gave the claimant paper and pencil in order to take down the bus number and the time and date.

After obtaining medical treatment for an injury to her right leg, she retained counsel to prosecute her claim. Unfortunately, her attorney died in a tragic accident on July 2, 1988. Claimant did not hear of her attorney’s death until November 1988, when she retained new counsel who obtained her file from her late attorney’s widow at the end of the year and then moved by order to show cause returnable April 12, 1989 for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5).

Considering the foregoing facts and circumstances, claimant’s delay in moving is excusable and, in the absence of a showing of substantial prejudice to MABSTOA, should not have barred the relief sought (see, Matter of Gerzel v City of New York, 117 AD2d 549, 551). Concur—Kupferman, J. P., Milonas, Ellerin, Wallach and Rubin, JJ.