Opinion
2002-09996.
Decided February 9, 2004.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Dowd, J.), dated October 9, 2002, as, upon granting her motion for leave to reargue and renew her prior motion to deem a late notice of claim timely served, or in the alternative, for leave to serve a late notice of claim, adhered to its prior determination dated April 10, 2002, denying her motion.
Fitzgerald Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, and Eugene S.R. Pagano of counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman Dicker, LLP, New York, N.Y. (Michael L. Boulhosa and Meredith Drucker of counsel), for respondent.
Before: SONDRA MILLER, J.P., GLORIA GOLDSTEIN, THOMAS A. ADAMS and STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the facts and as a matter of discretion, with costs, upon reargument and renewal, the order dated April 10, 2002, is vacated, and that branch of the plaintiff's motion which was, in the alternative, for leave to serve a late notice of claim is granted.
In determining whether to permit service of a late notice of claim pursuant to General Municipal Law § 50-e, a court should consider all relevant facts and circumstances, including whether an infant is involved, whether there is a reasonable excuse for the delay, whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days or a reasonable time thereafter, and whether the public corporation's defense on the merits would be substantially prejudiced by the delay ( see General Municipal Law § 50-e; Matter of Cotten v. County of Nassau, 307 A.D.2d 965, lv denied 1 N.Y.3d 502; Matter of Fierro v. City of New York, 271 A.D.2d 608, 609; Matter of Gaffney v. Town of Hempstead, 226 A.D.2d 721, 722; Matter of Matarrese v. New York City Health Hosps. Corp., 215 A.D.2d 7, 9).
The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's original motion which was for leave to serve a late notice of claim on behalf of the infant. The plaintiff demonstrated a reasonable excuse for the delay in serving the notice of claim. Moreover, the record contains evidence that the plaintiff complained of chipping paint in the apartment in question, located in a building owned by the defendant New York City Housing Authority (hereinafter the NYCHA), at or about the time of the infant's diagnosis with lead paint poisoning. Thus, the NYCHA had actual knowledge of the facts underlying the claim of the infant within the limitations period ( see Matter of Russo v. Monroe-Woodbury Cent. School Dist., 282 A.D.2d 465, 466; D'Erasmo v. City of Yonkers, 271 A.D.2d 393, 394). Finally, the NYCHA failed to make a compelling showing that it would be prejudiced by the delay. Accordingly, the Supreme Court should have granted the plaintiff leave to serve a late notice of claim.
S. MILLER, J.P., GOLDSTEIN, ADAMS and CRANE, JJ., concur.