The plaintiff moves to serve a late Notice of Claim pursuant to General Municipal Law

§50-e(5). This action concerns a fall by the plaintiff, where she fractured her ankle on September 5, 2006, when tripping on a broken sidewalk in the 100 block of Oakwood Avenue in the City of Syracuse. The plaintiff served a Notice of Claim on the City on November 17, 2006. The plaintiff commenced this action on May 9, 2007 after the City failed to request a hearing within ninety days, as required by General Municipal Law §50-h. The plaintiff then sent the City a Notice to Admit dated July 6, 2007, seeking an admission regarding its ownership, maintenance, control and repair of the sidewalk. The City denied the same on July 27, 2006. Thereafter, plaintiff's counsel investigated the ownership issue and found three possible additional defendants; the Syracuse Housing Authority (SHA), which owns the adjoining land, theOnondaga County Industrial Development Agency (OCIDA) and the New York Susquehanna [*2]Railroad Corporation, one and/or both of which own and control the overhead railroad line and the alleged easement that runs near the sidewalk. The plaintiff seeks to serve the late Notice of Claim on the two municipal agencies, the SHA, a municipal housing authority governed by §157 of the Public Housing Law, which requires compliance with General Municipal Law §50-e, and the OCIDA, which is governed by General Municipal Law §880 and also requires a claim.

General Municipal Law §50-e(5) provides that the court in its discretion may extend the time to serve the notice of claim, with the extension not exceeding the time limited for the commencement of an action against a public corporation.^[FN1] The statute requires the court to consider whether the public entity, its attorney or insurance carrier had actual knowledge of the essential facts constituting a claim within the time specified in subdivision 1 or a reasonable time thereafter, as well as other relevant facts and circumstances including, inter alia, whether the claimant, in serving the notice of claim, made an "excusable error concerning the identity of the public corporation against which the claim should be asserted and whether the delay in serving the Notice of Claim substantially prejudiced the public corporation in maintaining its defense on

the merits". General Municipal Law §50-e(5). A claimant's error concerning the identity of the public entity to be served can be excused provided that a prompt application for relief is made after discovery of the error. See, Santana v. Western Regional Off-Track Betting, 2 AD3d 1304 (4th Dept. 2003); see also, Flynn v. Town of Oyster Bay, 256 AD2d 341 (2d Dept. 1988).

In the present case, plaintiff first learned of the City's denial of the ownership on July 26,

2007 and filed the Order to Show Cause in this matter on August 7, 2007 after completing her investigation. The plaintiff's error in identifying these entities as defendants was indeed excusable here since the record shows that the Syracuse Police Department was called to the scene and the police officer completed a report which indicated that the plaintiff was "injured from [a] trip on a city sidewalk" and that "[t]he Syracuse Department of Public Works was advised of the hole location and incident". Thereafter, Department of Public Works barricades were placed over the hole ^[FN2]. Plaintiff's counsel attests that he visited the scene 60 days later and the barricades were removed and the hole was repaired. There was therefore no basis for the plaintiff to investigate any other possible owners of the property based upon the conduct of the City. Although SHA and OCIDA argue that they would be prejudiced in allowing them to be named as defendants now since the incident occurred over a year ago and the area had been repaired, a report was made of the incident and photographs were taken. Any City employees who were involved with the report or the repair of the sidewalk can be deposed. With respect to the potential defendants' argument that they had no actual notice of the plaintiff's claim, the

statute "contemplates actual knowledge of the essential facts constituting the claim' not knowledge of a specific legal theory." Williams v. Nassau County Medical Center, 6 NY3d 531 (2006). In addition, the statute contains a non-exhaustive list of factors that the court should [*3]weigh and compels consideration of all relevant facts and circumstances; this approach provides flexibility for the courts and requires them to exercise discretion. See, Pierson v. New York City Health & Hospitals Corp., 43 AD3d 92 (1st Dept. 2007) citing, Williams, supra. Since the statue is remedial in nature, it should be liberally construed. See, id.

It is clear that the plaintiff acted in good faith in naming only the City as a defendant based upon the City police department's investigation and the barricading and repair of the area by the Department of Public Works. As soon as the City disputed the issue of ownership of the sidewalk, plaintiff moved promptly to investigate and make application to this Court to serve a late Notice of Claim. Since the purpose of the statute is to allow a court in its discretion to strike an "equitable balance ...between a public corporation's reasonable need for prompt notification of claims against it and an injured party's interest in just compensation", based upon the facts and circumstances here, it would be unfair and unjust to deprive the plaintiff of the opportunity to preserve her right to bring a lawsuit against these entities upon the completion of the investigation as to the ownership of the property. Parco v. City of New York, 160 AD2d 581 (1st Dept. 1990), quoting, Camarella v. East Irondequoit Cent. School Bd., 34 NY2d 139 (1974); see also, Pierson, supra; see also, Santana, supra.

NOW, therefore, for the foregoing reasons, it is

ORDERED, that the plaintiff's motion to serve a late Notice of Claim pursuant to General Municipal Law §50-e(5) is granted.

ENTER

Dated: October 12, 2007

Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice