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Cruz v. City of Yonkers

Appellate Division of the Supreme Court of New York, Second Department
Jan 24, 2000
268 A.D.2d 501 (N.Y. App. Div. 2000)

Opinion

Submitted December 15, 1999

January 24, 2000

In an action to recover damages, inter alia, for sexual abuse, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered January 20, 1999, as denied that branch of their motion pursuant to CPLR 3211(a)(5), which was to dismiss the complaint insofar as asserted by the infant plaintiff Stephen Cruz, and granted that branch of the plaintiffs' cross motion which was for leave to serve a late notice of claim on behalf of the plaintiff Stephen Cruz.

William M. Mooney, Corporation Counsel, Yonkers, N.Y. (Kevin D. Crozier of counsel), for appellants.

Pirrotti Pirrotti, Ardsley, N.Y. (Anthony J. Pirrotti of counsel), for respondents.

GUY JAMES MANGANO, P.J., DAVID S. RITTER, DANIEL W. JOY, LEO F. McGINITY, NANCY E. SMITH, JJ.


DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The five-year-old infant plaintiff was allegedly abused at school by a sixth-grade student in January or February 1995. It was not discovered by the infant's mother until he disclosed it on March 13, 1995. She promptly reported it to school authorities and the Yonkers Police Department on March 15, 1995. On June 9, 1995, the plaintiffs served a notice of claim upon the defendants. The defendants moved to dismiss the complaint for failure to serve a timely notice of claim and the plaintiffs cross-moved for leave to serve a late notice of claim.

Contrary to the defendants' contention, the Supreme Court providently exercised its discretion in granting the infant plaintiff leave to serve a late notice of claim (see,General Municipal Law § 50-e[5]). In granting leave, the Supreme Court properly factored in the age of the infant plaintiff, the physical threats made to him by the alleged perpetrator, and the lack of substantial prejudice to the defendants due to their actual knowledge of the essential elements of the incident shortly after its alleged occurrence (see, Matter of Presley v. City of New York, 254 A.D.2d 490 ). Accordingly, the Supreme Court order is affirmed.

MANGANO, P.J., RITTER, JOY, McGINITY, and SMITH, JJ., concur.


Summaries of

Cruz v. City of Yonkers

Appellate Division of the Supreme Court of New York, Second Department
Jan 24, 2000
268 A.D.2d 501 (N.Y. App. Div. 2000)
Case details for

Cruz v. City of Yonkers

Case Details

Full title:STEPHEN CRUZ, etc., et al., respondents, v. CITY OF YONKERS, et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 24, 2000

Citations

268 A.D.2d 501 (N.Y. App. Div. 2000)
702 N.Y.S.2d 356

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