Frith v. New York City Housing Authority

• Court: New York Supreme Court — Appellate Division
• Citation: Frith v. New York City Housing Authority, 4 A.D.3d 390, 771 N.Y.S.2d 392, 2004 NY Slip Op 636 (N.Y. App. Div. 2004)
• Decision Date: 09 February 2004
• Docket Number: 2002-09996.
• Parties: LISA FRITH, Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Respondent, et al., Defendant.

4 A.D.3d 390

771 N.Y.S.2d 392

2004 NY Slip Op 00636

LISA FRITH, Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Respondent, et al., Defendant.

2002-09996.

Appellate Division of the Supreme Court of the State of New York, Second Department.

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.

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 [5]; Matter of Cotten v County of Nassau, 307 AD2d 965 [2003], lv denied 1 NY3d 502 [2003]; Matter of Fierro v City of New York, 271 AD2d 608, 609 [2000]; Matter of Gaffney v Town of Hempstead, 226 AD2d 721, 722 [1996]; Matter of Matarrese v New York City Health & Hosps. Corp., 215 AD2d 7, 9 [1995]).

The Supreme Court improvidently exercised its discretion in...