KOBERNIK v. CITY OF NEW YORK (2009)

Supreme Court, Appellate Division, First Department, New York.

Alexander KOBERNIK, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant.

Decided: April 14, 2009

TOM, J.P., ANDRIAS, BUCKLEY, DeGRASSE, JJ.

Michael A. Cardozo, Corporation Counsel, New York (John Hogrogian of counsel), for appellant. James M. Lane, New York, for respondent.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered July 16, 2007, which, in an action against defendant City of New York for personal injuries sustained when a tree on the side of a road located the Town of Carmel, Putnam County, uprooted and fell on the van in which plaintiff was a passenger, granted plaintiff's motion for leave to serve a late notice of claim, unanimously affirmed, without costs.

Plaintiff's original error in serving notices of claim on the Town of Carmel and Putnam County is excusable, based as it was on a reasonable belief that one or the other owned this roadway within the territorial jurisdiction of both, and plaintiff's subsequent delay in serving the true owner, the City of New York, is also excusable where he promptly moved to serve a late notice of claim against the City once advised by Putnam County that the site is owned by the City (see Matter of Harris v. Dormitory Auth. of State of N.Y., 168 A.D.2d 560, 562 N.Y.S.2d 781 [1990] ). The transient nature of the condition refutes the City's claim of prejudice (see id.).

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