Lopez v. New York City Housing Authority

• Decision Date: 28 March 1996
• Citation: 225 A.D.2d 492,639 N.Y.S.2d 389
• Parties: In re the Application of Gabriel LOPEZ, Claimant-Respondent, For an Order, etc., v. NEW YORK CITY HOUSING AUTHORITY, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 389

639 N.Y.S.2d 389

225 A.D.2d 492

In re the Application of Gabriel LOPEZ, Claimant-Respondent,

For an Order, etc., v. NEW YORK CITY HOUSING AUTHORITY, Respondent-Appellant.

Supreme Court, Appellate Division,

First Department.

March 28, 1996.

Jacqueline A. Robles, for claimant-respondent.

Sim R. Shapiro, for respondent-appellant.

Before MURPHY, P.J., and RUBIN, ROSS and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Anne Targum, J.), entered June 15, 1995, which granted petitioner's application for leave to file a late notice of claim, unanimously affirmed, without costs.

The question of whether to grant an application for leave to serve a late notice of claim is left to the sound discretion of the court (Matter of Jenkins v. New York City Hous. Auth., 181 A.D.2d 506, 581 N.Y.S.2d 587). Here, that discretion was not improvidently exercised, where petitioner's excuse for filing the notice of claim six and a half months after the accident, that he did not ascertain the severity of his injury until three months after his accident, is reasonable (Swensen v. City of New York, 126 A.D.2d 499, 501, 511 N.Y.S.2d 20, lv. denied 70 N.Y.2d 602, 518 N.Y.S.2d 1024, 512 N.E.2d 550). Similarly, the underlying facts of the claim become known to respondent shortly after the expiration of the 90-day statutory time period and, even if the condition which petitioner alleges caused the accident--the lack of handrails on a staircase--has changed, it is likely that respondent made the change and/or kept a record of it. We have considered respondent's other claims and find them to be without merit.