| Fredrickson v New York City Hous. Auth. |
| 2011 NY Slip Op 06190 [87 AD3d 425] |
| August 4, 2011 |
| Appellate Division, First Department |
| Ann Fredrickson, Respondent, v New York City HousingAuthority, Appellant. |
—[*1]
Order, Supreme Court, Bronx County (John A. Barone, J.), entered on or about November 3,2010, which granted petitioner's motion for leave to serve a late notice of claim on respondent,nunc pro tunc, without the necessity of further physical service, affirmed, without costs.
Although petitioner failed to submit medical evidence to support her contention of physicalincapacitation, the lack of a reasonable excuse for failing to serve a timely notice of claim is notdeterminative (see Matter of Ansong v City of New York, 308 AD2d 333, 334 [2003]).Petitioner averred that she reported the essential facts of her accident to respondent'smanagement office within three days of her trip and fall. Accordingly, the court had a basis forfinding that respondent acquired actual knowledge of the essential facts constituting the claimwithin the statutorily prescribed time period or a reasonable time thereafter (see GeneralMunicipal Law § 50-e [5]). Further, respondent has not shown that it was prejudiced bypetitioner's eight-month delay in seeking leave to serve a late notice of claim (see Laguna v New York City Hous.Auth., 74 AD3d 498, 499 [2010]). Indeed, there is no evidence of any witnesses topetitioner's accident. Nor is there any contention that the step upon which petitioner allegedlytripped has changed from the date of her accident. Concur—Sweeny, Freedman andManzanet-Daniels, JJ.
Saxe, J.P., and Catterson, J., dissent in a memorandum by Catterson, J., as follows: I concurwith the majority that the record contains no proof whatsoever that petitioner was soincapacitated by her injuries that she was incapable of contacting an attorney so that a timelynotice of claim could be filed. (See e.g.Matter of Rivera v New York City Hous. Auth., 25 AD3d 450, 451 [1st Dept 2006].)However, I disagree with the majority's view that respondent "acquired actual knowledge of theessential facts constituting the claim," and so I must respectfully dissent.
Petitioner's vague and unsubstantiated allegation that she reported her accident to "the [*2]woman behind the window" is plainly insufficient to satisfyplaintiff's burden of proving that respondent acquired actual knowledge. (Matter of Barzaga vNew York City Hous. Auth., 204 AD2d 163, 164 [1st Dept 1994] ["(t)he vague andunsubstantiated allegation that the condition was reported to the building superintendent somedays after the accident is insufficient to warrant granting the relief sought"]; see Lopez v NewYork City Hous. Auth., 193 AD2d 473 [1st Dept 1993].) Even if one were to creditpetitioner's claimed reporting, there is nothing on the record that establishes that respondent hadsufficient information that put respondent on notice that a claim would be filed.