Gamoneda v. New York City Board of Education

Mar 16, 1999
Versions:259 A.D.2d 348
687 N.Y.S.2d 46
1999 N.Y. App. Div. LEXIS 2750

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered on or about December 1, 1997, which granted plaintiff’s motion for leave to file late notices of claim and deemed the notices of claim as timely served nunc pro tunc, and denied defendants’ cross motion to dismiss the complaint, unanimously affirmed, without costs.

Since defendants were in receipt of an accident report and an aided report, which indicated that there were no witnesses to the accident, filled out by the police officer who responded to the accident scene, they had, from the outset, notice of the facts upon which plaintiff’s claim is premised (see, Matter of Cicio v City of New York, 98 AD2d 38, 39-40). Thus, the motion court properly deemed plaintiff’s late notices of claim timely served nunc pro tunc. Defendants’ claim that they were prejudiced by plaintiff’s delay is additionally and significantly undermined by the circumstance that the icy condition to which plaintiff attributes her injury was highly transitory and would *349not have remained for defendants’ investigation even if plaintiffs notices had been timely filed, i.e., within 90 days of the accident (see, Matter of Strauss v New York City Tr. Auth., 195 AD2d 322). Concur — Sullivan, J. P., Rosenberger, Tom and Lerner, JJ.