The following papers numbered 1 to 3 were read on this motion:

Petitioner brings her special proceeding seeking an Order giving her leave, pursuant to Section § 50-e(5) of the General Municipal Law, to serve and file a late Notice of Claim against respondent, as well as an Order directing that her proposed Notice of Claim be deemed served upon respondent.

The facts are as follows: on December 6, 2023,^[FN1] petitioner, while holding her four-year old in her arms, crossed Brook Street in Yonkers so that her child could see the child's father, Frank Paola. Mr. Paola was working as a security guard ^[FN2] in a security booth at the corner of Brook and School Streets. After a very short exchange, petitioner turned to cross back across the street and fell into a hole in the sidewalk where a bollard had been at some point previously. According to petitioner at her 50-h deposition, there was a video of the accident that was supplied to her by Mr. Paola from a security camera.^[FN3] Petitioner testified at her 50-h deposition that immediately after she fell, Mr. Paola ran out from the security booth to help her, as did her stepfather from across the street, where she was supposed to have met him.

In February 2024, petitioner's prior counsel filed a Notice of Claim against the City of Yonkers (the "City"), indicating that the accident had occurred at 19 School Street. On April 16, 2024, the City took petitioner's 50-h deposition. On May 29, 2024, the City filed its answer, which included eleven defenses. Among those was failure to state a claim and failure to mitigate damages, among other boilerplate defenses. The last defense was that "Defendant, CITY OF YONKERS, does not own, operate, occupy, maintain, repair, manage, service, possess or supervise the area in which plaintiff identified [sic] as the sidewalk outside of the Ross F. Calgano Homes as referenced in plaintiff's Verified Complaint and during her statutory hearing pursuant to Section 50(h) of General Municipal Law." The City did not write a letter explaining what it meant by this defense, raise it in a conference before the Court, at the 50-h deposition or make a motion to dismiss on the basis that it does not own the property. Nor did petitioner seek to learn more information about this defense, which she plainly should have done.

It was not until January 29, 2025, after a Preliminary Conference ^[FN4] before this Court, that counsel for the City wrote to counsel for petitioner about the mediation. In that email, counsel stated that "In addition, the City does not own the property of [sic] where the alleged accident took place. It is owned by the Municipal Housing Authority. Please call me to discuss." Petitioner filed this petition only a few days later under General Municipal Law § 50-e(5).

This section states, in relevant part, that "Upon application, the court, in its discretion, [*2]may extend the time to serve a notice of claim. . . . The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation . . . acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one of this section or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: . . . whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted." Gen. Mun. Law § 50-e(5).The Court of Appeals has found that "a court's decision to grant or deny a motion to serve a late notice of claim is purely a discretionary one." Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 465 (2016).

To begin with, the Court finds that petitioner's petition is timely because a court may "grant an application to file a late notice of claim [if it is] made before or after the commencement of the action but not more than one year and 90 days after the cause of action accrued, unless the statute has been tolled." Pierson v. City of New York, 56 NY2d 950, 954 (1982). There is no dispute that the accident was less than one year and 90 days ago.

The Court next examines the issue of prejudice. As the Second Department has explained, "A petitioner has the initial burden of showing that the late notice will not substantially prejudice the municipality or public corporation. Such a showing need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice. Once this initial showing has been made, the municipality or public corporation must respond with a particularized evidentiary showing that it will be substantially prejudiced if the late notice is allowed. The municipality or public corporation is required to submit admissible evidence to meet its burden because it is in the best position to know and demonstrate whether it has been substantially prejudiced by the late notice." N. F. v. City of New York, 161 AD3d 1046, 1048, 77 N.Y.S.3d 712, 715 (2d Dept. 2018).

In this action, petitioner contends that there is no prejudice to respondent because "The condition on which the Petitioner was injured is upon information and belief [sic] still present and has been present since at least August of 2017. There still exists today, as there did on the date of her incident, the ability of the Respondent to investigate and establish the very same defenses. The dangerous condition is not of a transient nature, such as liquid or ice. . . . In this case, a Notice of Claim filed within the first ninety (90) days would not have changed any of the defenses available to the Respondent, even more so because the subject incident was caught on Respondent's very own surveillance video. As such, there is no prejudice to any investigation. Further, any essential paper documents in this litigation such as work/maintenance logs and inspection records are still exclusively within the possession of the Respondent and still exists in the very same form as they did one year ago." The Court finds that this establishes petitioner's initial showing of no prejudice.

In response, respondent submits no evidence to support its allegations of prejudice. Benedetto v. New York City Sch. Constr. Auth., 230 AD3d 1138, 1140, 219 N.Y.S.3d 347, 350 (2d Dept. 2024) ("The Authority failed to make a particularized evidentiary showing of prejudice, relying instead on conclusory assertions."). All that respondent states on the subject of prejudice is that the Court need not even reach it, because petitioner failed to establish any excuse for filing the Notice of Claim against the wrong entity, or that respondent obtained actual knowledge. It goes on to assert that if the Court were to consider prejudice, "The respondents [*3]herein were deprived of the opportunity to seek out and investigate the accident [sic] more than 1 year after the incident occurred. If the petitioner had been more diligent in providing actual notice and making the instant Petition, the respondent may have been able to provide information valuable to the defense of this action. Thus, the petitioner's dilatory conduct hindered the respondents' investigation of how the accident occurred, potential witnesses, and post-accident inspection and preservation of the site as it appeared shortly after the accident to determine the cause of the alleged accident."

This is inadequate, for two reasons. The first is that "No one factor is deemed controlling, nor is the presence or absence of any one factor determinative." Schnier v. New York State Thruway Auth., 205 AD3d 958, 959, 168 N.Y.S.3d 119, 122 (2d Dept. 2022). The second is that respondent's conclusory assertions of prejudice are baseless, for several reasons: (1) there is video footage of the accident, taken by respondent's own security cameras (or cameras operated by respondent's agents); (2) the witnesses to the accident are known; and (3) the hole in the pavement may have existed long before and after the accident. As the Court of Appeals has explained, "mere inferences cannot support a finding of substantial prejudice where, as here, there is no record evidence to support them. . . . [A] finding that a public corporation is substantially prejudiced by a late notice of claim cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence in the record." Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 465—66 (2016).

Given that there is no prejudice to respondent, that respondent's own security company recorded the incident, and that the City did not volunteer the information about respondent until January 2025, there is no reason for the Court to deny the petition. The Court finds that although petitioner should have investigated further after receiving the answer from the City, this factor is not fatal. See Gershanow v. Town of Clarkstown, 88 AD3d 879, 880, 931 N.Y.S.2d 131, 133 (2d Dept. 2011). Accordingly, the petition is granted. The proposed Notice of Claim is deemed served as of the date of this Decision and Order.

The foregoing constitutes the decision and order of the Court.^[FN5]