BIALER v. Hudson River Park Trust, Respondent-Appellant.

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

Philip BIALER, Petitioner-Respondent, v. CITY OF NEW YORK, Respondent, Hudson River Park Trust, Respondent-Appellant.

Decided: November 22, 2005

SAXE, J.P., MARLOW, ELLERIN, GONZALEZ, McGUIRE, JJ. Fiedelman & McGaw, Jericho (James K. O'Sullivan of counsel), for appellant. Donna H. Clancy, New York, for Philip Bialer, respondent.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered on or about December 28, 2004, which granted petitioner's motion to file a late notice of claim against appellant, unanimously affirmed, without costs.

Petitioner's failure to set forth a reasonable excuse for its failure to serve its notice of claim within the statutorily prescribed 90 days did not, under the particular circumstances at bar, require the denial of its motion for leave to serve a late notice (see Matter of Porcaro v. City of New York, 20 A.D.3d 357, 358, 799 N.Y.S.2d 450 [2005] ).   The timely referral of petitioner's case to appellant by the State, pursuant to an indemnification agreement, afforded appellant sufficient indicia of a causal connection between the accident and its conduct, as well as an opportunity to investigate (cf. Pineda v. City of New York, 305 A.D.2d 294, 761 N.Y.S.2d 157 [2003] ), and given the short delay beyond the statutory 90 days, appellant was not prejudiced (see Price v. Herstic, 240 A.D.2d 151, 152, 657 N.Y.S.2d 700 [1997] ).   Accordingly, the grant of petitioner's motion constituted a proper exercise of discretion.