SYKES v. BUFFALO MUNICIPAL HOUSING AUTHORITY (2000)

Plaintiff appeals from an order denying her application to serve a late notice of claim pursuant to General Municipal Law § 50-e (5).   She was injured in an accident that occurred on September 5, 1998.   The 90-day statutory period expired on December 4, 1998, and plaintiff filed her motion on February 1, 1999.   On September 21, 1998, plaintiff gave defendant written notice of her accident, and the next day defendant conducted an investigation and took photographs of the accident scene.   Although defendant's manager refutes plaintiff's allegation that the manager misled plaintiff into believing that her rights were thereby preserved, he admits that he offered to send her “paperwork” to defendant's administrative offices.   In response to plaintiff's application, defendant made no claim of prejudice.

Given the brief period of delay in filing the application (see, Barnes v. New York City Hous. Auth., 262 A.D.2d 46, 691 N.Y.S.2d 463 [56 days];  Matter of Thornhill v. New York City Hous. Auth., 232 A.D.2d 317, 648 N.Y.S.2d 575 [two months] ) and the lack of prejudice, Supreme Court abused its discretion in denying plaintiff's application (see, Reed v. City of Lackawanna, 221 A.D.2d 967, 633 N.Y.S.2d 912).   Even if plaintiff has “not demonstrated a strong excuse for [the] delay in filing, the presence or absence of any one of the numerous relevant factors the court must consider is not determinative” (Salvaggio v. Western Regional Off-Track Betting Corp., 203 A.D.2d 938, 938-939, 612 N.Y.S.2d 94;  see, Matter of Affleck v. County of Nassau, 240 A.D.2d 569, 570, 660 N.Y.S.2d 131).   Thus, we reverse the order and grant the application upon condition that the proposed notice of claim is served upon defendant within 20 days of service of a copy of the order of this Court with notice of entry.

Order unanimously reversed on the law with costs and application granted.

MEMORANDUM: