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Lauray v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 7, 2009

IN RE BARBARA LAURAY, PETITIONER-RESPONDENT,
v.
CITY OF NEW YORK, ET AL., RESPONDENTS-APPELLANTS.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered January 28, 2008, which granted the petition for leave to file a late notice of claim and deemed the notice of claim timely filed nunc pro tunc, unanimously reversed, on the law, without costs, and the petition denied.

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.

Mazzarelli, J.P., Sweeny, Nardelli, Freedman, Richter, JJ.

302869/07

As petitioner's counsel concedes, there is no viable cause of action against defendants. The location of petitioner's alleged trip and fall on the sidewalk was in front of a commercial business and not in front of a one-, two-, or three-family residence (see Administrative Code of the City of New York § 7-210[c]). The record further shows that leave to file a late notice of claim was improperly granted. Petitioner failed to meet her burden of demonstrating a reasonable excuse for the delay, the timely receipt by respondents of actual notice of the defect, and the lack of prejudice (see e.g. Ocasio v New York City Health & Hosps. Corp. [Morrisania Neighborhood Family Care Ctr.], 14 AD3d 361 [2005]; General Municipal Law § 50-e[5]).

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

20090507

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