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Kobernik v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 14, 2009

ALEXANDER KOBERNIK, PLAINTIFF-RESPONDENT,
v.
THE CITY OF NEW YORK, DEFENDANT-APPELLANT.

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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Andrias, Buckley, DeGrasse, JJ.

105263/07

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 AD2d 560 [1990]). The transient nature of the condition refutes the City's claim of prejudice (see id.).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090414

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