Gonzalez v City of New York

Gonzalez v City of New York 2012 NY Slip Op 01512 Decided on February 28, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 28, 2012
Mazzarelli, J.P., Andrias, Catterson, Abdus-Salaam, Manzanet-Daniels, JJ.
6935N 108216/10

[*1]Sandra Gonzalez, Plaintiff-Respondent,

v

The City of New York, et al., Defendants, New York City Housing Authority, et al., Defendants-Appellants.




Herzfeld & Rubin, P.C., New York (Neil R. Finkston of
counsel), for appellants.
Helen F. Dalton & Associates, Forest Hills (Roman
Avshalumov of counsel), for respondent.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered January 28, 2011, which granted plaintiff's motion to file a late notice of claim, and denied defendants New York City Housing Authority and Nathan Strauss Housing's (defendants) cross motion to dismiss the complaint as against them, unanimously reversed, on the law and the facts, without costs, the motion denied and the cross motion granted. The Clerk is directed to enter judgment dismissing the complaint as against said defendants.

Plaintiff failed to establish any of the relevant statutory factors that would warrant leave to serve a late notice of claim (General Municipal § 50-e[5]; Matter of Kelley v New York City Health & Hosps. Corp., 76 AD3d 824 [2010]). Her claimed injury was a broken bone in her ankle, which was treated in the emergency room. There was no showing that the injury was so incapacitating as to prevent the service of a timely notice of claim (see Matter of Montanez v City of New York, 156 AD2d 185, 185 [1989]). There was no showing that defendants acquired actual knowledge of the facts and circumstances constituting the claim within the statutory 90-day service period (see Quinn v Manhattan & Bronx Surface Tr. Operating Auth., 273 AD2d [*2]144 [2000]). There was no showing that a defense on the merits would not be prejudiced by the late service, given the subsequent repair of the alleged sidewalk defect (see Matter of Gitis v City of New York, 68 AD3d 489 [2009], lv denied 14 NY3d 712 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 28, 2012

CLERK