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Ortega v. New York City Housing Authority

167 A.D.2d 337 Court N.Y. App. Div. Decision date 1990-11-05 English

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p. 337
Gaspar V. Ortega et al., Respondents, v New York City Housing Authority, Appellant.

In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Vinik, J.), entered June 30, 1989, which, inter alia, granted the plaintiffs’ motion for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5).

Ordered that the order is affirmed, with costs.

It is well established that 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 (see, Matter of Gruber v

p. 338
City of New York, 156 AD2d 450 ; Matter of Fast v County of Broome, 151 AD2d 930 ; Matter of Halperin v City of New York, 127 AD2d 461 ). Although the plaintiffs excuses for his failure to timely serve a late notice of claim are not overly persuasive, "the absence of an acceptable excuse for the delay is not necessarily fatal to the application” (Montalto v Town of Harrison, 151 AD2d 652 , 653). The facts underlying the claim became known to the defendant within 32 days after the expiration of the 90-day period, and the defendant failed to establish that it would be prejudiced by the granting of the application (see, Matter of Edwards v Town of Delaware, 115 AD2d 205 ; Hutchins v Village of Tupper Lake Hous. Auth., 72 AD2d 875 ; Segretto v Town of Oyster Bay, 66 AD2d 796 ).

Under the circumstances of this case, it cannot be said that the court improvidently exercised its discretion in granting the plaintiffs motion (see, Simmons v New York City Hous. Auth., 161 AD2d 377 ). Eiber, J. P., Harwood, Balletta and O’Brien, JJ., concur.

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