Matter of Gasperetti v Metropolitan Transp. Auth.

Matter of Gasperetti v Metropolitan Transp. Auth. 2019 NY Slip Op 01328 Decided on February 21, 2019 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 21, 2019
Friedman, J.P., Gische, Kapnick, Gesmer, Kern, JJ.
8480 152371/17

[*1]In re Daiva Gasperetti, Petitioner-Appellant,

v

Metropolitan Transportation Authority, Respondent-Respondent.

Wingate, Russotti, Shapiro & Halperin, LLP, New York (David M. Schwarz of counsel), for appellant.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Joel M. Simon of counsel), for respondent.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about March 12, 2018, which denied petitioner's application for leave to file a late notice of claim, unanimously reversed, on the law and in the exercise of discretion, without costs, and the application granted.

The motion court improvidently exercised its discretion in denying petitioner's application for leave to file a late notice of claim given that it appears respondent had actual knowledge of the facts and circumstances constituting the claim within a reasonable time after the statutorily prescribed 90-day filing period (see General Municipal Law § 50-e[5]). Moreover, it appears that respondent is not prejudiced by petitioner's delay in filing the notice of claim.

We have considered respondent's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 21, 2019

CLERK