IN RE: Terrell BATTLE

Reset A A Font size: Print

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

IN RE: Terrell BATTLE, etc., respondent, et al., petitioner, v. CITY OF NEW YORK, et al., appellants.

Decided: May 24, 1999

CORNELIUS J. O'BRIEN, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO and ROBERT W. SCHMIDT, JJ. Michael D. Hess, Corporation Counsel, New York, N.Y. (Francis F. Caputo, Dona B. Morris, and Ralph A. Foertsch of counsel), for appellants.

In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5), the appeal, as limited by the appellants' brief, is from so much of an order of the Supreme Court, Kings County (R. Goldberg, J.), dated March 30, 1998, as granted the application with respect to the infant petitioner.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

 A court, after considering all relevant facts and circumstances presented to it, has the discretion to extend the time to serve a notice of claim (see, General Municipal Law § 50-e[5];  Matter of Sverdlin v. City of New York, 229 A.D.2d 544, 545, 645 N.Y.S.2d 843;  Matter of Singh v. City of N.Y./Bronx Community Coll., 223 A.D.2d 545, 546, 636 N.Y.S.2d 130;  Matter of Gallino v. Village of Shoreham, 222 A.D.2d 506, 634 N.Y.S.2d 550;  Matter of Rudisel v. City of New York, 217 A.D.2d 702, 630 N.Y.S.2d 259).   A factor that should be accorded great weight is whether the City of New York received actual knowledge of the facts constituting the claim in a timely manner (see, Kalenda v. Buffalo Mun. Hous. Auth., 203 A.D.2d 937, 611 N.Y.S.2d 386;  see also, Hilton v. Town of Richland, 216 A.D.2d 921, 629 N.Y.S.2d 130).   Here, the City received actual knowledge of the essential facts constituting the claim within 90 days of its accrual.   The City's own employees were involved in remedying the violations cited and the City's own agency, the New York City Department of Health, had records of all inspections done on the subject premises (see, Matter of Holmes v. City of New York, 189 A.D.2d 676, 592 N.Y.S.2d 371).   Thus, there will be no substantial prejudice to the City as a result of the petitioners' delay.   Accordingly, the granting of the application with respect to the infant petitioner was not an improvident exercise of discretion.

MEMORANDUM BY THE COURT.

Copied to clipboard