IRIZARRY v. New York City Housing Authority, appellant.

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

Jeremy IRIZARRY, etc., et al., respondents, v. Ying-Choi LEE, et al., defendants, New York City Housing Authority, appellant.

Decided: February 22, 1999

DAVID S. RITTER, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN and LEO F. McGINITY, JJ. Herzfeld & Rubin, P.C., New York, N.Y. (Herbert Rubin, David B. Hamm, and Linda M. Brown of counsel), for appellant. Levy, Phillips & Konigsberg, LLP, New York, N.Y. (Alan J. Konigsberg and Alani Golanski of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant New York City Housing Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (I. Aronin, J.), dated January 14, 1998, as granted the plaintiffs' motion for leave to serve a late notice of claim to the extent of deeming the notice of claim timely filed nunc pro tunc with respect to the claim of the plaintiff Jeremy Irizarry and the derivative claim of the plaintiff Marilyn Zeh based thereon, and denied that branch of its cross motion which was to dismiss those claims insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied with respect to the claims of the plaintiff Jeremy Irizarry and the derivative claim of the plaintiff Marilyn Zeh based thereon, the cross motion is granted with respect to these claims, and the complaint is dismissed insofar as asserted against the appellant.

 In this action to recover damages related to alleged lead poisoning experienced by the infant plaintiffs, the Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion for leave to serve a late notice of claim with regard to the plaintiff Jeremy Irizarry and the derivative claim of the plaintiff Marilyn Zeh based thereon, and in denying that branch of the appellant's cross motion to dismiss those claims.   Contrary to the plaintiffs' contention, the cause of action accrued in 1994 when they first learned that Jeremy had elevated levels of lead in his blood (see, Matter of Turner v. New York City Hous. Auth., 243 A.D.2d 636, 663 N.Y.S.2d 254;  Perry v. City of New York, 238 A.D.2d 326, 656 N.Y.S.2d 301).   The service of the notice of claim on or about June 13, 1996, and the motion for leave to serve a late notice of claim on or about January 9, 1997, was made after the one-year-and-90-day time within which to commence an action had expired (see, Matter of Turner v. New York City Hous. Auth., supra).  Moreover, the delay was not attributable to infancy, nor did the plaintiffs otherwise come forward with any reasonable excuse for the delay (see, Matter of Scala v. Westchester County Med. Ctr., 233 A.D.2d 514, 650 N.Y.S.2d 296;   Matter of Matarrese v. New York City Health & Hosps. Corp., 215 A.D.2d 7, 633 N.Y.S.2d 837).   Additionally, the appellant did not acquire actual notice of the essential facts constituting the claim within 90 days or a reasonable time thereafter, nor may notice to the New York City Department of Health be imputed to the appellant (see, Matter of Turner v. New York City Hous. Auth., supra;  Pagan v. New York City Hous. Auth., 175 A.D.2d 114, 572 N.Y.S.2d 18).   Finally, the appellant would be prejudiced if leave to serve a late notice were permitted at this point (see, Matter of Turner v. New York City Hous. Auth., supra).

MEMORANDUM BY THE COURT.

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