Summary
In Chattergoon v.New York City Hous. Auth., supra, a majority of the Appellate Division, First Department, held that a police investigation of the homicide of petitioner's decedent did not give actual knowledge to the Housing Authority, since the police investigation was dedicated to locating the murderer and not toward defending any claim of negligence related to the Housing Authority.
Summary of this case from Torres v. City of N.Y.Opinion
October 12, 1993
Appeal from the Supreme Court, Bronx County (Anita Florio, J.).
We disagree with respondent that there was undue delay in petitioner's waiting to seek renewal while the prior appeal ( 161 A.D.2d 141, affd 78 N.Y.2d 958) was sub judice before the Court of Appeals. Petitioner set forth new factual material, as opposed to legal argument, in detailing the physical evidence in respondent's possession concerning the claim of failed security, and the interviews it conducted concerning lock maintenance (cf., Haussmann v. Wolf, 187 A.D.2d 371, 373; Matter of Disston Co. [Aktiebolag], 187 A.D.2d 283, lv dismissed 81 N.Y.2d 835). Having properly granted renewal, the IAS Court then properly exercised its discretion in granting leave to serve the late notice pursuant to General Municipal Law § 50-e (5) with respect to the claim for conscious pain and suffering. Respondent's police file sufficiently indicates that the investigation into the death of petitioner's decedent, while it undoubtedly focused primarily on solving the homicide, also paid close attention, through preservation of physical evidence and interviews with building personnel, to the condition of the apartment locks and their maintenance, providing respondent with actual knowledge of the underlying facts that form the basis for petitioner's claim (see, Matter of Olmo v. City of New York, 178 A.D.2d 197, 198, lv denied 79 N.Y.2d 755; cf., Bullard v. City of New York, 118 A.D.2d 447, 450-451 [Kassal, J., concurring]). In determining whether to permit the filing of a late notice of claim "the presence or absence of any one factor is not determinative" (Matter of Morris v. County of Suffolk, 88 A.D.2d 956, 957, affd 58 N.Y.2d 767), and the absence of a reasonable excuse for the delay is not fatal (see, Matter of Gerzel v. City of New York, 117 A.D.2d 549, 551; Rechenberger v. Nassau County Med. Ctr., 112 A.D.2d 150, 152-153). Given respondent's knowledge, and the resulting lack of prejudice, petitioner's unexplained delay in seeking leave to serve a late notice is of minimal significance.
Concur — Murphy, P.J., Kassal, Rubin and Nardelli, JJ.