Baldeo v. City of New York

127 A.D.2d 809, 511 N.Y.S.2d 937, 1987 N.Y. App. Div. LEXIS 53412

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 1987
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant New York City Industrial Development Agency appeals from an order of the Supreme Court, Kings County (Bernstein, J.), dated April 14, 1986, which granted the plaintiffs’ motion for leave to serve a late notice of claim and denied its cross motion to dismiss the complaint as against it.

Ordered that the order is affirmed, with costs.

It is well settled that General Municipal Law § 50-e (5) permits the court to consider all relevant factors and to exercise considerable discretion in determining whether to permit service of a late notice of claim (see, Matter of Mazzilli v City of New York, 115 AD2d 604, 605; Matter of Lucas v City of New York, 91 AD2d 637). At bar, after reviewing the circumstances of the plaintiffs’ application, we conclude that the court properly exercised its discretion in granting leave to file a late notice of claim. We concur in the court’s determination that considering all the relevant factors, the plaintiffs have established a reasonable excuse for their failure to timely serve their notice of claim. The greater part of the delay was attributable to the plaintiffs’ excusable error concerning the identity of the public corporation against which the claim should have been asserted (cf., Tadros v New York City Health & Hosps. Corp., 112 AD2d 85, 86). Moreover, the appellant’s conclusory allegation of severe prejudice is unsupported by the record (see, Matter of Mazzilli v City of New York, supra, at 606; Pepe v Somers Cent. School Dist., 108 AD2d 799, 800). Mollen, P. J., Bracken, Lawrence and Sullivan, JJ., concur.