FEBLES v. CITY OF NEW YORK (2005)

Supreme Court, Appellate Division, First Department, New York.

Brandon FEBLES, etc., et al., Plaintiffs-Respondents, v. CITY OF NEW YORK, et al., Defendants-Appellants.

Decided: February 10, 2005

ANDRIAS, J.P., SAXE, SULLIVAN, ELLERIN, SWEENY, JJ.

Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for City of New York, appellant. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Meredith Drucker and Cynthia A. Neugebauer of counsel), for New York City Housing Authority, appellant. The Pagan Law Firm, P.C., New York (Beth N. Jablon of counsel), for respondents.

Order, Supreme Court, Bronx County (George Salerno, J.), entered May 13, 2004, which, to the extent appealed from, granted the infant plaintiff's motion pursuant to General Municipal Law § 50-e(5) for leave to file a late notice of claim, unanimously affirmed, without costs.

The IAS court properly exercised its discretion in granting the infant plaintiff's timely motion for leave to file a late notice of claim. Although no specific excuse was offered for the delay, that circumstance was properly found non-dispositive given the moving plaintiff's infancy during the relevant period and the absence of prejudice to defendants (see Ali v. Bunny Realty Corp., 253 A.D.2d 356, 676 N.Y.S.2d 166 [1998] ). Defendants, we note, had actual notice of the alleged defect, which was identified on the Big Apple Map 10 months prior to the accident. Moreover, the alleged defect is apparently permanent, and can still be inspected.

We have reviewed defendants' remaining arguments and find them unavailing.

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