Gallino v. Village of Shoreham

222 A.D.2d 506, 634 N.Y.S.2d 550, 1995 N.Y. App. Div. LEXIS 12735

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 1995
• Status: Published

Opinion

—In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a late notice of claim, the appeal is from an order of the Supreme Court, Suffolk County (Gerard, J.), dated April 28, 1994, which, inter alia, granted the application.

Ordered that the order is affirmed, with costs.

The record supports the finding that the one-day delay beyond the 90-day time period to serve a notice of claim on behalf of the infant petitioner resulted from the infant’s on-going treatment for serious injuries and her parent’s concern for the child’s condition (see, General Municipal Law § 50-e [1] [a]; Matter of Holmes v New York City Hous. Auth., 201 AD2d 650; Matter of Brown v New York City Hous. Auth., 194 AD2d 667). The decision to grant the petitioners’ application under General Municipal Law § 50-e (5) was within the court’s discretion inasmuch as the application was made within the one year and 90-day period of limitations imposed by General Municipal Law § 50-i (1) (c). Considering the overall circumstances, including the minimal delay in serving the notice of claim and the lack of substantial prejudice to the appellants as a result of the delay, the granting of leave to serve a late notice of claim on behalf of the infant petitioner was not an improvident exercise of discretion (see, Matter of Holmes v New York City Hous. Auth., supra). Balletta, J. P., Thompson, Joy and Goldstein, JJ., concur.