| Matter of Ruffino v City of New York |
| 2008 NY Slip Op 09605 [57 AD3d 550] |
| December 2, 2008 |
| Appellate Division, Second Department |
| In the Matter of Victoria Ruffino, Appellant, v City of New Yorket al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F. X. Hart and Drake A.Colley of counsel; Nicole C. Gragg on the brief), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioner appeals from an order of the Supreme Court, Queens County (Kerrigan,J.), dated May 31, 2007, which denied the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, and the petition isgranted.
The petitioner commenced this proceeding for leave to serve a late notice of claim in connectionwith injuries she sustained when she tripped and fell over a wooden board affixed to the surface of aboardwalk which was under the jurisdiction of the respondent City of New York (hereinafter the City).The petitioner served a timely notice of claim upon the New York City Transit Authority (hereinafterthe Transit Authority), among other public corporations. On September 20, 2006 the Transit Authorityexamined the petitioner pursuant to General Municipal Law § 50-h. On October 24, 2006 thepetitioner commenced an action against the Transit Authority, among other entities. In February 2007the Transit Authority commenced a third-party action against the City alleging that the City owned,operated, maintained, managed, and controlled the area of the boardwalk where the petitioner fell, andon March 8, 2007 apprised the petitioner that the City had jurisdiction over the area where she fell. Theinstant [*2]proceeding for leave to serve a late notice of claim upon theCity was commenced by order to show cause dated April 10, 2007.
An error in serving the wrong governmental entity with a notice of claim may be excused ifremedied promptly after discovery of the mistake (see General Municipal Law § 50-e[5]; Matter of Wimberly v SouthernWestchester BOCES [Board of Coop. Educ. Servs.], 51 AD3d 810, 811 [2008]; Matter of McLean v Valley Stream Union FreeSchool Dist. 30, 48 AD3d 571, 572 [2008]; Matter of Flynn v Town of Oyster Bay,256 AD2d 341 [1998]). The petitioner's attorney promptly commenced this proceeding afterverifying that the wrong entities had been served. Furthermore, the petitioner demonstrated that thedelay in serving the notice of claim did not substantially prejudice the City in maintaining its defense onthe merits. The City repaired the subject piece of planking less than one month after the accident. Thus,due to its own actions, it would not have been able to investigate the site of this transitory defect anymore effectively than it could have had it been timely served 90 days after the incident (see Segretov Town of Oyster Bay, 66 AD2d 796 [1978]; cf. Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d138, 152 [2008]; Matter of Nieves v Girimonte, 309 AD2d 753 [2003]).
Moreover, even though the subject wooden board had been removed and the underlyingboardwalk repaired within one month after the accident, the petitioner took photographs of the defecton the day of the accident and returned to inspect and photograph the location approximately onemonth after the accident (see Barnes v New York City Hous. Auth., 262 AD2d 46, 47[1999]; Lozada v City of New York, 189 AD2d 726, 727 [1993]). Under thesecircumstances, the Supreme Court improvidently exercised its discretion in denying the petition (seeMatter of Flynn v Town of Oyster Bay, 256 AD2d 341 [1998]; Matter of Harris v DormitoryAuth. of State of N.Y., 168 AD2d 560 [1990]). Rivera, J.P., Florio, Angiolillo, McCarthy andChambers, JJ., concur.