Matter of Gitis v City of New York

Matter of Gitis v City of New York 2009 NY Slip Op 09088 [68 AD3d 489] December 8, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

In the Matter of Lydia Gitis, Respondent,
v
City of New York, Appellant.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (John Hogrogian of counsel), for appellant.

Rimland & Associates, Brooklyn (Anthony M. Grisanti of counsel), for respondent.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered June 23, 2008, which, in an action for personal injuries allegedly sustained as the result of a trip and fall on a public sidewalk, granted petitioner's application for leave to file a late notice of claim, unanimously reversed, on the law and the facts, and in the exercise of discretion, without costs, the application denied, and the proceeding dismissed.

Supreme Court exercised its discretion in an improvident manner in granting plaintiff's application for leave to file a late notice of claim some three months after expiration of the applicable 90-day deadline (General Municipal Law § 50-e [1] [a]; [5]; see e.g. Washington v City of New York, 72 NY2d 881, 883 [1988]). The record shows that petitioner not only failed to demonstrate that respondent City of New York had timely actual notice of her claim, but she also failed to establish a reasonable excuse for failing to meet the statutory deadline. Petitioner possessed the Big Apple Map reflecting defects at the subject location, and while she asserts that the delay in filing a timely notice of claim was attributable to the fact that she was awaiting documents from the Department of Transportation, those records were not necessary to the composition and timely filing of a notice of her claim (see Potts v City of N.Y. Health & Hosps. Corp., 270 AD2d 129 [2000]).

Petitioner also failed to establish the absence of prejudice to the City, as photographs of the accident location taken by petitioner shortly after the accident depict the sidewalk in its original condition, while photographs taken by her investigator after the expiration of the 90-day period reveal that repairs had been made. Had timely notice been filed, the City may have been able to perform an inspection of the sidewalk in its original condition (compare Matter of Gerzel v City of New York, 117 AD2d 549, 551-552 [1986]). Concur—Andrias, J.P., Saxe, Sweeny, Moskowitz and Abdus-Salaam, JJ.