Rudloff v. City of Rochester

303 A.D.2d 1052, 756 N.Y.S.2d 818, 2003 N.Y. App. Div. LEXIS 2803

Opinion

—Appeal from an order of Supreme Court, Monroe County (Siracuse, J.), entered November 27, 2001, which denied claimants’ application to serve a late notice of claim.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed in the exercise of discretion without costs and the application is granted upon condition that claimants shall serve the proposed notice of claim within 20 days of the date of entry of the order of this Court.

Memorandum: On May 17, 2001, claimant Robert F. Rudloff was working as a carpenter on a bridge owned by respondent, City of Rochester, when he slipped off a flat piece of steel that protruded from a concrete wall of the bridge and fell four to five feet, sustaining injuries to his left knee. On August 24, 2001, claimants contacted an attorney to represent them in an action against respondent and, on August 27, 2001, their attorney sought leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5). Supreme Court denied claimants’ application, and this appeal ensued. Because the period of delay is relatively short and respondent has failed to demonstrate that it was prejudiced by reason of the delay (see generally Salvaggio v Western Regional Off-Track Betting Corp., 203 AD2d 938 [1994]), we exercise our discretion to grant claimants’ application upon condition that claimants shall serve the proposed notice of claim within 20 days of the date of entry of the order of this Court. Present — Pine, J.P., Scudder, Kehoe, Lawton and Hayes, JJ.