Chattergoon v. New York City Housing Authority

• Decision Date: 12 October 1993
• Citation: 197 A.D.2d 397,602 N.Y.S.2d 381
• Parties: Jankie CHATTERGOON, etc., Plaintiff-Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 381

602 N.Y.S.2d 381

197 A.D.2d 397

Jankie CHATTERGOON, etc., Plaintiff-Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Oct. 12, 1993.

Before MURPHY, P.J., and KASSAL, RUBIN and NARDELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Anita Florio, J.), entered May 27, 1992, which granted petitioner's motion to renew his application for leave to serve a late notice of claim, and, upon renewal, granted the application, unanimously affirmed, without costs.

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, 554 N.Y.S.2d 859, aff'd, 78 N.Y.2d 958, 574 N.Y.S.2d 934, 580 N.E.2d 406) 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, 589 N.Y.S.2d 483; Matter of Disston Co. [Aktiebolag], 187 A.D.2d 283, 589 N.Y.S.2d 442, app. dismissed, 81 N.Y.2d 835, 595 N.Y.S.2d 396, 611 N.E.2d 297). 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, 577 N.Y.S.2d 267, lv. denied, 79 N.Y.2d 755, 583 N.Y.S.2d 191, 592 N.E.2d 799; cf., Bullard v. City of New York, 118 A.D.2d 447, 450-451, 499 N.Y.S.2d 880 [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, 451 N.Y.S.2d 448, affd., 58 N.Y.2d 767, 459 N.Y.S.2d 38, 445 N.E.2d 214), and the absence of a reasonable excuse for...