IN RE: Sheila COX

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

IN RE: Sheila COX, Respondent, v. CITY OF PEEKSKILL, et al., Appellants.

Decided: September 23, 2002

ANITA R. FLORIO, J.P., CORNELIUS J. O'BRIEN, WILLIAM D. FRIEDMANN, THOMAS A. ADAMS and STEPHEN G. CRANE, JJ. Henderson & Brennan, White Plains, N.Y. (John T. Brennan of counsel), for appellants. Lawrence J. Eisenberg, White Plains, NY, for respondent.

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the appeal is from an order of the Supreme Court, Westchester County (Donovan, J.), entered October 19, 2001, which granted the application.

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting the petitioner's application for leave to serve a late notice of claim upon the Peekskill City School District, s/h/a City of Peekskill Board of Education (hereinafter the School District) (see General Municipal Law § 50-e[5];  Matter of Guarneri v. Town of Oyster Bay, 224 A.D.2d 695, 638 N.Y.S.2d 711).

The petitioner alleged that she was injured in a fall on a sidewalk, and she timely served a notice of claim upon the City of Peekskill and the Peekskill Department of Sanitation.   Upon learning that the School District actually owned the property where she fell, the petitioner promptly served a notice of claim upon that entity.   Under the circumstances, and in view of the minimal delay, we agree with the Supreme Court that the petitioner's error concerning the identity of the municipal entity upon which the notice of claim was to be served was excusable (see Matter of National Sur. Corp. v. Town of Greenburgh, 266 A.D.2d 550, 551, 699 N.Y.S.2d 128;  Matter of Guarneri v. Town of Oyster Bay, supra;  Matter of Harris v. Dormitory Auth. of the State of New York, 168 A.D.2d 560, 562 N.Y.S.2d 781).

The School District failed to show that the delay in service of the notice of claim hampered its ability to conduct an investigation. The snow and ice condition which allegedly caused the accident undoubtedly would have changed even if the notice of claim was timely served (see Hoffman v. New York City Hous. Auth., 187 A.D.2d 334, 337, 589 N.Y.S.2d 475).   Furthermore, interviews with witnesses take on added importance in cases involving short-lived conditions such as snow and ice, and the petitioner provided statements from two witnesses who observed the condition of the sidewalk at the time of her accident (cf.  Aviles v. City of New York, 202 A.D.2d 530, 609 N.Y.S.2d 85).   Under the circumstances, the School District failed to demonstrate that it was substantially prejudiced in preparing a defense.

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