Rose v. Rochester Housing Authority

• Decision Date: 06 June 2008
• Docket Number: CA 08-00023.
• Citation: 859 N.Y.S.2d 806,2008 NY Slip Op 05220,52 A.D.3d 1268
• Parties: TIARA ROSE, Respondent, v. ROCHESTER HOUSING AUTHORITY, Appellant.
• Court: New York Supreme Court — Appellate Division

52 A.D.3d 1268

859 N.Y.S.2d 806

2008 NY Slip Op 05220

TIARA ROSE, Respondent, v. ROCHESTER HOUSING AUTHORITY, Appellant.

CA 08-00023.

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

Decided June 6, 2008.

Appeal from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.), entered March 22, 2007. The order granted plaintiff's application for leave to serve a late notice of claim.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum:

Supreme Court did not abuse its discretion in granting plaintiff's application pursuant to General Municipal Law § 50-e (5) seeking leave to serve a late notice of claim (see generally Palumbo v City of Buffalo, 1 AD3d 1032 [2003]). Although plaintiff has not demonstrated any specific nexus between her infancy and her delay in serving a notice of claim (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 537-538 [2006]), "we do not, under all the relevant circumstances, find such omission [to be] fatal to [her] application" (Abbot v City of New York, 271 AD2d 364 [2000]). The record establishes that, at the time plaintiff sustained the alleged injuries resulting from lead paint exposure in premises owned by defendant in which plaintiff resided, defendant was notified both that plaintiff had an elevated blood lead level and that there were lead paint violations at the premises. Thus, defendant had actual knowledge of plaintiff's specific claim within the limitations period (see Frith v New York City Hous. Auth., 4 AD3d 390, 391 [2004]; Matter of Lanphere v County of Washington, 301 AD2d 936, 938 [2003]; Matter of Stanley v City of New York Hous. Auth., 257 AD2d 497 [1999]). Furthermore, defendant is not substantially prejudiced by plaintiff's delay in serving a notice of claim inasmuch as it had the opportunity to conduct a full investigation when it received actual notice of the claim (see Matter of Courtney Nicole R. v Moravia Cent. School Dist. [appeal No. 2], 28 AD3d 1134, 1135 [2006]). Whether defendant actually did so is of no moment (see generally Matter of Trusso v Board of Educ. of Jamestown City School Dist., 24 AD3d 1302, 1303 [2005]).

Present — Scudder, P.J., Hurlbutt, Centra, Fahey and Peradotto, JJ.