Petitioner-Claimant Deborah Danzy ("Petitioner" or "Danzy") brings this Petition pursuant to General Municipal Law ("GML") § 50-e for an order permitting her to serve a late Notice of Claim for personal injuries upon Respondents City of Newburgh Industrial Development Agency ("IDA") and the City of Newburgh ("Newburgh") (collectively "Respondents"). The proposed Notice of Claim (the "Notice", dated April 22, 2014 and annexed to the Petition) alleges that Danzy suffered personal injuries on December 24, 2013 due to the "negligence, recklessness, wantonness, carelessness, gross negligence, failure to warn" of Defendants when she slipped and fell on snow and ice on a walkway outside of her apartment.

According to her Petition and supporting papers, Danzy resides in an apartment within a large multi-acre housing complex in Newburgh, New York. An initial, abbreviated notification with respect to the incident was sent by a letter from Petitioner's counsel on January 24, 2014 to the entity that counsel believed to be the owner of the location at issue - - Belvedere Housing Owners, LLC ("Belvedere") - - and designated the location of the accident as 381 Lake Drive, Newburgh, New York, Plaintiff's residential address. (Petitioner's Reply Affirm., Exh. 2). Petitioner maintains that while Belvedere remains listed as the titled owner of the property at issue, an agreement between Belvedere and Respondents vests, at least for the duration of such agreement, title to the property in Respondents (Affirm. In Support of Pet. � 5). According to the Affirmation of Danzy's Counsel in support of the Petition, counsel for Petitioner did not discover this relationship between Respondents public corporations and the property at issue until April 2014 - - after the 90 day statutory notice period under GML § 50-e(1) had expired - - and promptly served the instant Petition thereafter (Affirm. In Support, pp. 1-2).

Be that as it may, it is undisputed that the January 24, 2014 letter did not contain the detailed information required to qualify as a formal Notice of Claim under GML § 50-e(2) - - doubtless because until April, Danzy's counsel did not realize that a public entity had any involvement with the alleged incident. Such formal notice - - such as the Notice annexed to the Petition - - should have been served upon Respondents within 90 days of Danzy's claim, that is, by March 24, 2014. Petitioner seeks an order permitting service of a late notice of claim upon Respondents and directing Respondents to accept service of such Notice as if made within ninety days after Danzy's claim arose. For the reasons set forth herein, this Court finds that such late Notice should be permitted.

General Municipal Law ("GML") § 50-e(1) requires that "[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation" a potential plaintiff must serve a notice of claim upon such public corporation "in accordance with the provision of this section within [*2]ninety days after the claim arises." It is undisputed that § 50-e(1) applies to Petitioner's alleged claim herein. Pursuant to GML § 50-e(5), the Supreme Court, upon proper application to it, may "in its discretion . . . extend the time to serve a notice of claim specified in" Section 50-e(1). Such extension may "not exceed the time limited for the commencement of an action by the claimant against the public corporation." (GML § 50-e(5)).

In determining whether to exercise its discretion to permit late service of a notice of claim, § 50-e(5) lists several factors that the Court "shall consider", including the following:

Chief among the factors that the Court should consider is whether the "public corporation or. . . . its insurance carrier" secured actual knowledge of the "essential facts constituting the claim" within the 90 day period, and whether a delay in providing the formal notice of claim would "substantially prejudice the public corporation in maintaining its defense on the merits." GML § 50-e (5); see Matter of Placido v. County of Orange, 112 AD3d 722 (2d Dept. 2013). ("While the presence or absence of any one of the factors is not necessarily determinative . . . whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance").

As discussed more fully below, in the instant case, Danzy has shown that she provided Respondents, through their putative insurer, with such essential facts. Moreover, due to the nature of the underlying claim, Respondents have not been prejudiced by the 29 day delay in its receipt of the late formal Notice - - the time period between March 24 and the date of Petitioner's motion to which such Notice of Claim was annexed. Accordingly, Petitioner's motion must be granted, and Respondents' required to accept Danzy's Notice of Claim.

Petitioner's application boils down to her contention that the Respondents had actual notice of the essential facts of her claim by virtue of a letter notification from Plaintiff's counsel to, and received by, the punitive insurer of them, the Tower Group Companies ("Tower"). The letter from Plaintiff's counsel was dated January 24, 2014 - - well within the 90 day statutory period - - and was addressed to "Belvedere Housing Owrs" at "207 Lake Drive, Newburgh, New York." Tower's response to it, dated January 30, 2014, was received by Petitioner's counsel; such response acknowledged receipt by Tower of counsel's January 24 letter and indicated that Tower had opened a file on the matter. The January 30 letter from Tower, as well as the January 24 letter to which it responded, sets forth the "loss location" as 381 Lake Drive, Newburgh, New York. In its January 30 letter, Tower requested details of the claim, including the exact time and location of the incident. Petitioner's counsel indicates that such additional information was promptly "verbally provided" to Tower by his firm - - a claim that Respondents do not contradict. Of equal significance, neither Respondent appears to take issue with Petitioner's assertion that Tower is its insurer with respect to the claim alleged or the location at issue.

Perhaps for these reasons, the principal focus of Respondents' opposition to the Petition is whether Petitioner properly designated the location of the alleged incident - - 381 Lake Drive - - in her counsel's initial notification letter to Tower. Respondents maintain that the property owned by both or at least one of them is listed in the Orange County records as 207 Lake Drive, not 381 Lake Drive. Under the circumstances that obtain herein, Respondents' objection is of no moment. As Petitioner's motion papers reflect, Danzy used, for initial notification purposes, her residential address - - an understandable choice since she claims that the incident occurred on a walkway in close proximity to it. The fact that the technical legal designation of the site of the incident - - a small area within a multi-acre housing complex (Pl. Reply Affirm. �� 4-5) - - may ultimately be denominated as some different street address should not penalize a party for doing what common sense would dictate: listing the accident location as the residential address outside of which she allegedly stumbled. Moreover, the proposed formal Notice, rather then setting forth a precise street address, provides a detailed description of the incident location and a photograph of the site - - a more than adequate designation of where the incident occurred.

In similar circumstances, courts have allowed a party to amend its notice of claim to change the listed location of the incident at issue as long as doing so would not prejudice the public corporation against which the claim was asserted. For example, in Seise v. City of New York, 212 AD2d 467 (1st Dept. 1995), the original notice of claim "erroneously described the accident scene . . . as 125th Street and Third Avenue, New York, New York when in fact the accident occurred at 124th Street and 3rd Avenue." (Id. at 467). The City's alleged liability stemmed from a purported defective stoplight at the intersection where the accident occurred. Plaintiff's mistake went undetected until the plaintiff testified at the GML § 50-h hearing "53 days after the expiration of the statutory notice of claim period, when plaintiff testified to the correct state of facts." (Id.). The First Department reversed the lower Court and permitted plaintiff to file an amended notice of claim specifying the correct accident location. The Court reasoned that the correction of mistakes made in good faith, even with respect to such an essential matter as the location of the accident at issue, should be liberally granted so as not to deprive a potential plaintiff of his or her day in court as long as such correction does not seriously prejudice the public corporation. As the First Department stated,

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While Seise addressed the situation of an amendment to a notice of claim that was otherwise timely filed, its rationale nonetheless obtains here: absent prejudice to the public corporation, a late filing that reflects essential facts of which such public corporation was previously aware, or deemed to be aware through notice to its insurer should be permitted so that the substance of a plaintiff's claim may be heard, even if such a rudimentary fact as the location of the accident had been initially mistated. (See also Rosenblatt v. City of New York, 160 AD2d 927 (2d Dept. 1990); Gamoneda v. NYC Bd. of Education, 259 AD2d 348 (1st Dept. 1999). The Court also notes that should discovery in the instant case ultimately reveal that Petitioner slipped and fell at a location as to which Respondents have no interest or responsibility, then Respondents will undoubtfully seek the appropriate relief at that time. Unless and until then, an action should be permitted to proceed.

However, the issue of prejudice lingers. That is, will Respondents herein be prejudiced by allowing Danzy to file a late formal notice of claim under the circumstances present herein. To be sure, lack of prejudice to a public corporation, standing alone, would be insufficient to permit a late notice of claim filing. Otherwise, the exception would devour the rule in any case where fast changing conditions - - such as the melting snow and ice allegedly present here - - form the fulcrum of a petitioner's claim. Nonetheless, in the instant case, additional factors are present that, as Courts have held, compel the application of the GML §§ 50-e(5) exception.

The evident purpose underlying the statutory mandate that a public corporation be promptly advised of a claim against it is essentially twofold: (1) to provide a public entity, with its attendant budget and fiscal responsibilities, a measure of certainty with respect to its future [*3]claim exposure and responsibility greater than that afforded by a typical statute of limitations applicable to private entities; and (2) to afford the public corporation an opportunity to promptly investigate a potential claim against the public coffers before circumstances, perhaps even of its own making in light of its governmental imperative, forever alter the playing field. See, e.g., Pocaro v. City of New York, 20 AD3d 357 (1st Dept. 2005); Lomax v. New York City Health & Hospitals Corp., 262 AD2d 2 (1st Dept. 1999).

Perhaps for these reasons, courts have frequently weighed three factors in determining whether the filing of a claim after the statutory deadline expires would sufficiently prejudice the public corporation so as to compel a denial of a claimant's application to accept it: the amount of time after the expiration of the statutory deadline that the notice of claim was submitted; whether the public corporation had knowledge of essential facts underlying the claim within or promptly after the expiration of the statutory period; and whether the claim is based upon transitory conditions such that even if examined within the 90 day period following the incident, the public corporation would have gleaned little, if anything more than a later investigation would reveal.

For example, in the Second Department case of Rosenblatt v. City of New York, 160 AD2d 927 (2d Dept. 1990), plaintiff brought an application for leave to serve a late notice of claim 18 days after the statutory 90 day period had expired. The basis of plaintiff's claim was a slip and fall "on a patch of ice while walking on a public sidewalk in Brooklyn." (Id). Plaintiff argued that her late filing should be excused because her physical condition - - she was four months pregnant at the time - - and her concern for "the well-being of her unborn child prevented the service of a timely notice of claim" - - an excuse which the lower court rejected. The Second Department acknowledged that the proffered excuse did not pass muster since it did not explain why plaintiff could not find her way to a lawyer's office in a timely fashion. Nonetheless, the Court reversed and granted plaintiff's application.

The Court reasoned that the presence or absence of a valid excuse for a late filing is not dispositive as long as the public corporation had knowledge of essential facts underlying the claim within the 90 day period or shortly thereafter, such delay was minimal, and the public corporation was not prejudiced by the delay. The Court found that the 18 day delay was minimal, and since a transitory condition - - ice that surely melted during the 90 day period - - gave rise to plaintiff's claim, the City was not prejudiced by such a short delay since its "investigation of the claims was no more hindered on the 108th day following the accident than it would have been had notice been served within the 90 day statutory period." As the Court held,

The application of these principles to the instant case militates in favor of requiring Respondents to accept Danzy's late filed Notice of Claim. Here, as in Rosenblatt, Petitioner's delay was not excessive; the 90 day period after the alleged incident expired in late March, 2014, and Petitioner interposed the instant motion - - which included a proposed formal Notice of Claim - - on April 22, 2014, shortly after the statutory deadline. Moreover in the instant case, as in Rosenblatt, not only did a similar transitory condition - - an icy walkway - - give use to the claim, but in both cases, the municipality obtained a complete, detailed recitation of the facts, and a proposed formal notice of claim, within a short time - - here, less than 30 days following the expiration of the statutory period. In addition and significantly, unlike the Rosenblatt defendant, Respondents in the instant case, through their putative insurer, received essential facts underlying Danzy's claim while the 90 day clock was still ticking, whereas the City in Rosenblatt, during the same statutory time frame, received no news from plaintiff Rosenblatt about her claim. And, as in Rosenblatt, Seize and Gamoneda, the conditions that gave rise to the claim - - an alleged accumulation of snow and ice on a street or walkway - - would surely have changed, if not entirely dissipated, by the 89th days after the alleged incident as surely by the 91st day, thereby inhibiting an investigation of the scene even had the notice of claim been timely interposed. Thus, as in Rosenblatt and the above referenced cases, relief under GML § 50-e(5) should be granted to Petitioner Danzy.

The Court also notes that Respondent Newburgh seeks to dismiss Danzy's petition and foreclose her from maintaining any action on a separate ground, namely, that the City had no actual or constructive knowledge of notice of the condition which Danzy claims gave rise to the incident at issue. While Newburgh's lack of notice defense may ultimately prove meritorious, the assertion of such a defense at this juncture is manifestly premature. As the cases recognize, notice, or lack of it, is quintessentially a factual issue that must be explored during the course of the litigation. See, e.g., Kucevic v. Three Park Ave. Bldg Co., L.P., 55 AD3d 792 (2d Dept. 2008); Hilliard v. Town of Greenburgh, 301 AD2d 572 (2d Dept. 2003). It is therefore not [*5]timely to address such an issue where, as here, an action has yet to even be commenced.

Accordingly, based upon the foregoing, Petitioner Danzy's application is granted and Respondents are directed to accept Petitioner's Notice of Claim dated April 22, 2014 as annexed to the Petition.

The foregoing constitutes the Decision and Order of this Court.

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