Matter of Caridi v New York Convention Ctr. Operating Corp.

Matter of Caridi v New York Convention Ctr. Operating Corp. 2008 NY Slip Op 00431 [47 AD3d 526] January 24, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

In the Matter of Robert Caridi, Respondent,
v
New York Convention Center Operating Corporation, Appellant.

—[*1] Fiedelman & McGaw, Jericho (Andrew Zajac of counsel), for appellant.

Brecher, Fishman, Pasternack, Heller, Walsh & Tilker, P.C., New York City (Michael D. Neuman of counsel), for respondent.

Order, Supreme Court, New York County (Louis B. York, J.), entered May 3, 2007, which, in an action for personal injuries, granted petitioner's motion for leave to serve a late notice of claim, unanimously affirmed, without costs.

The court exercised its discretion in a provident manner in allowing petitioner to file a late notice of claim more than seven months after expiration of the 90-day filing requirement (see General Municipal Law § 50-e [1] [a]; [5]). Any alleged prejudice to respondent is undermined by reason of the State Police being on the scene at the time of the accident and immediately conducting an investigation that included interviewing witnesses and taking photographs of the location as it existed at the time of the accident, which culminated in a report readily available to respondent (see Barnes v New York City Hous. Auth., 262 AD2d 46, 47 [1999], lv denied 95 NY2d 757 [2000]). The record evidence further establishes that the defective condition that caused petitioner to fall and injure his knee was highly transitory and respondent would have been unable to investigate even if the notice of claim was served within the prescribed statutory period (see Gamoneda v New York City Bd. of Educ., 259 AD2d 348 [1999]; Matter of Strauss v New York City Tr. Auth., 195 AD2d 322, 323 [1993]). Concur—Tom, J.P., Saxe, Friedman and Buckley, JJ.