Weiss v. City of New York
| Decision Date | 27 March 1997 |
| Citation | 655 N.Y.S.2d 34,237 A.D.2d 212 |
| Parties | Erwin and Jane WEISS, Petitioners-Appellants, v. The CITY OF NEW YORK, Respondent-Respondent. |
| Court | New York Supreme Court — Appellate Division |
George C. Trovato, Jr., for Petitioners-Appellants.
Elaine R. Witkoff, for Respondent-Respondent.
Before MURPHY, P.J., and MILONAS, NARDELLI and ANDRIAS, JJ.
Order of the Supreme Court, New York County (Louis York, J.), entered March 6, 1996, which adhered to a prior ex parte determination denying leave to petitioners to file a late notice of claim, is unanimously reversed, on the law and the facts, without costs or disbursements, and petitioners' motion for leave to file a late notice of claim is granted nunc pro tunc. Appeal from the order of the same Court and Justice, entered on or about November 29, 1995, which declined to sign the petitioners' order to show cause seeking leave to file a late notice of claim, is unanimously dismissed, without costs or disbursements.
Petitioner Erwin Weiss was allegedly injured in a fall from a ladder, on July 29, 1995, while installing a traffic signal pursuant to his employer's contract with the respondent City. Petitioners retained counsel on November 1, 1995, and counsel submitted the first order to show cause for leave to serve a late notice of claim on November 3, 1995. The 90 day period had expired on October 28, 1995. After the court's denial of this ex parte application, petitioners' counsel faxed a letter to the City on November 14, 1995, with the proposed notice of claim containing all the pertinent and necessary information about the accident, and submitted once more an order to show cause for leave to file a late notice of claim, which the court again declined to sign. Petitioners then moved by notice of motion for the same relief and the IAS court denied the motion (improperly denominated one for "renewal and reargument"). This denial of leave was an improvident exercise of discretion.
Initially, the IAS court erred by requiring, in addition to the statutory factors enumerated in General Municipal Law § 50-e(5), that petitioners offer evidence of a meritorious claim against respondent (see, Matter of Strauss v. New York City Transit Authority, 195 A.D.2d 322, 600 N.Y.S.2d 32 [] ). Ordinarily, courts should not delve into the merits of an action in determining an application to file a late notice except in the rare case when the claim is "patently...
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