Lozada v. City of New York

Appellate Division of the Supreme Court of New York

Lozada v. City of New York

189 A.D.2d 726, 592 N.Y.S.2d 742, 1993 N.Y. App. Div. LEXIS 731

Appellate Division of the Supreme Court of the State of New York·Decided January 28, 1993·Published·Cited by 4 cases

Opinion

— Order, Supreme Court, Bronx County (Lewis R. Friedman, J.), entered on or about December 20, 1991 which denied defendant Housing Authority’s motion for an order dismissing the complaint as time-barred and which granted plaintiffs’ cross-motion, pursuant to General Municipal Law § 50-e (5), for leave to serve a late notice of claim, unanimously affirmed, without costs.

In the circumstances, we find it to have been a reasonable exercise of discretion for the court to grant the application eight and one-half months beyond the ninety day period (see, Cruz v New York City Hous. Auth., 178 AD2d 291). Plaintiff Caridad Lozada, an infant, had timely served the City of New York (which has since cross-claimed against the Housing [727] Authority) and subsequent investigation revealed that the Housing Authority may be responsible for and/or had been repairing the subject sidewalk at the time of the injury. Likewise, a Housing Authority police officer did file a contemporaneous report (see, Matter of Gerzel v City of New York, 117 AD2d 549), and apparently photographs of the accident site were taken and eyewitnesses have come forth. Defendant Housing Authority has not articulated any countervailing prejudice (see, Matter of Stenowich v Colonie Indus. Dev. Agency, 151 AD2d 894, 896, lv denied 74 NY2d 615). Concur— Murphy, P. J., Milonas, Ellerin, Ross and Kassal, JJ.

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— Order, Supreme Court, Bronx County (Lewis R. Friedman, J.), entered on or about December 20, 1991 which denied defendant Housing Authority’s motion for an order dismissing the complaint as time-barred and which granted plaintiffs’ cross-motion, pursuant to General Municipal Law § 50-e (5), for leave to serve a late notice of claim, unanimously affirmed, without costs.

In the circumstances, we find it to have been a reasonable exercise of discretion for the court to grant the application eight and one-half months beyond the ninety day period (see, Cruz v New York City Hous. Auth., 178 AD2d 291). Plaintiff Caridad Lozada, an infant, had timely served the City of New York (which has since cross-claimed against the Housing [727] Authority) and subsequent investigation revealed that the Housing Authority may be responsible for and/or had been repairing the subject sidewalk at the time of the injury. Likewise, a Housing Authority police officer did file a contemporaneous report (see, Matter of Gerzel v City of New York, 117 AD2d 549), and apparently photographs of the accident site were taken and eyewitnesses have come forth. Defendant Housing Authority has not articulated any countervailing prejudice (see, Matter of Stenowich v Colonie Indus. Dev. Agency, 151 AD2d 894, 896, lv denied 74 NY2d 615). Concur— Murphy, P. J., Milonas, Ellerin, Ross and Kassal, JJ.

Lozada v. City of New York, 189 A.D.2d 726, 592 N.Y.S.2d 742, 1993 N.Y. App. Div. LEXIS 731 (N.Y. Ct. App. 1993).

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Opinion

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