Haley v. Dormitory Authority

133 A.D.2d 527, 519 N.Y.S.2d 900, 1987 N.Y. App. Div. LEXIS 50007

Opinion

Order unanimously reversed on the law with costs and motion granted. Memorandum: Petitioner appeals from the denial at Special Term of her application for leave to serve a late notice of claim pursuant to subdivision (5) of section 50-e of the General Municipal Law. Plaintiff was injured when she fell down a stairwell in a State University dormitory. Plaintiff offered a reasonable excuse for the delay in serving a late notice of claim because her counsel was misadvised by the Attorney-General regarding the proper party defendant (see, Nordman v East Greenbush Cent. School Dist., 75 AD2d 958; Robb v New York City Hous. Auth., 71 AD2d 1000). Defendant received actual knowledge of plaintiff’s claim shortly after the 90-day statutory period and has failed to establish any prejudice if the motion is granted (see, General Municipal Law § 50-e [5]; Barnes v County of Onondaga, 103 AD2d 624, affd 65 NY2d 664; Matter of Gerzel v City of New York, 117 AD2d 549; Matter of Jakubowicz v Dunkirk Urban Renewal Agency, 75 AD2d 1019; Matter of Wemett v County of Onondaga, 64 AD2d 1025). Under these circumstances it was an abuse of discretion to deny petitioner’s application for leave to file a late notice of claim. (Appeal from order of Supreme Court, Erie County, Cook, J.—late notice of claim.) Present—Dillon, P. J., Denman, Green, Balio and Davis, JJ.