Smiley-Walsch v. New York City Housing Authority

Appellate Division of the Supreme Court of New York

Smiley-Walsch v. New York City Housing Authority

172 A.D.2d 382, 568 N.Y.S.2d 762, 1991 N.Y. App. Div. LEXIS 4949

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 23, 1991

StatusPublished

Cited by2 cases

This text of 172 A.D.2d 382 (Smiley-Walsch v. New York City Housing Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smiley-Walsch v. New York City Housing Authority, 172 A.D.2d 382, 568 N.Y.S.2d 762, 1991 N.Y. App. Div. LEXIS 4949 (N.Y. Ct. App. 1991).

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Opinion

Order, Supreme Court, Bronx County (Anita Florio, J.), entered January [383]*38331, 1990, which granted petitioner’s application to file a late notice of claim, unanimously affirmed, without costs.

The eight month delay by the administratrix in filing a notice of claim for conscious pain and suffering, and the 23 day delay as to the claim for wrongful death, was excusable, and Supreme Court acted within its discretion in permitting petitioner to file a late notice of claim. In view of the fact that respondent undisputedly received prompt and actual notice of the underlying event, and absent any bona fide showing of prejudice, petitioner was entitled to have her claim adjudicated on the merits (Matter of Nayyar v Board of Educ., 169 AD2d 628).

Respondent’s argument that an administratrix is not a person entitled to seek relief pursuant to General Municipal Law § 50-e (5) (see, e.g., Matter of Lynn v City of New York, 18 AD2d 1076, affd 13 NY2d 955) is misplaced, as the authority relied upon predates the 1976 amendment of the statute. Concur—Carro, J. P., Milonas, Ellerin, Smith and Rubin, JJ.

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Order, Supreme Court, Bronx County (Anita Florio, J.), entered January [383]*38331, 1990, which granted petitioner’s application to file a late notice of claim, unanimously affirmed, without costs.

The eight month delay by the administratrix in filing a notice of claim for conscious pain and suffering, and the 23 day delay as to the claim for wrongful death, was excusable, and Supreme Court acted within its discretion in permitting petitioner to file a late notice of claim. In view of the fact that respondent undisputedly received prompt and actual notice of the underlying event, and absent any bona fide showing of prejudice, petitioner was entitled to have her claim adjudicated on the merits (Matter of Nayyar v Board of Educ., 169 AD2d 628).

Respondent’s argument that an administratrix is not a person entitled to seek relief pursuant to General Municipal Law § 50-e (5) (see, e.g., Matter of Lynn v City of New York, 18 AD2d 1076, affd 13 NY2d 955) is misplaced, as the authority relied upon predates the 1976 amendment of the statute. Concur—Carro, J. P., Milonas, Ellerin, Smith and Rubin, JJ.

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Bluebook (online)

172 A.D.2d 382, 568 N.Y.S.2d 762, 1991 N.Y. App. Div. LEXIS 4949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smiley-walsch-v-new-york-city-housing-authority-nyappdiv-1991.

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