Turner v. City of New York

• Decision Date: 04 April 1994
• Parties: In the Matter of Adam Charles TURNER, etc., et al., Respondents, v. CITY OF NEW YORK, Defendant, New York City Housing Authority, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 894

612 N.Y.S.2d 894

203 A.D.2d 294

In the Matter of Adam Charles TURNER, etc., et al., Respondents, v. CITY OF NEW YORK, Defendant, New York City Housing Authority, Appellant.

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

April 4, 1994.

Morris, Duffy, Alonso & Marulli, New York City (Patricia D'Alvia, of counsel), for appellant.

Jeffrey I. Marks, New York City, for respondents.

In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a late notice of claim, the New York City Housing Authority appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated March 23, 1992, which granted the application.

ORDERED that the order is affirmed, with costs.

In this case, the notice of claim was served only 16 days after expiration of the 90-day time limit for serving a notice of claim, and the appellant can show no prejudice, as it received actual notice of the incident on the day following the petitioner's injury.

There is no merit to the appellant's contention that the petitioners' application must be denied because it was not established that the delay in seeking leave to serve late notice of claim was the product of the infant petitioner's infancy. Rather, it is well settled that "infancy is now but one consideration and '[t]he decision to grant or deny an extension under section 50-e (subd 5) is still purely a discretionary one' " (Matter of Kurz v. New York City Health & Hosps. Corp., 174 A.D.2d 671, 672, 571 N.Y.S.2d 533; see also, Matter of Kyser v. New York City Hous. Auth., 178 A.D.2d 601, 577 N.Y.S.2d 487).

Therefore, the Supreme Court properly exercised its discretion in granting the petitioners' application (see, Matter of Chatman v. White Plains Hous. Auth., 101 A.D.2d 838, 475 N.Y.S.2d 500).

MANGANO, P.J., and MILLER, HART and FLORIO, JJ., concur.