Soreca v. New York City Housing Authority

177 A.D.2d 254

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1991
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Lewis R. Friedman, J.), entered July 26, 1990, granting the application of petitioners Vincent and Mary Jo Soreca, pursuant to General Municipal Law § 50-e, to serve and file a late notice of claim, unanimously affirmed, without costs.

There was no abuse of discretion in granting petitioners’ application. Evaluation of the relevant factors, i.e., whether the public corporation acquired actual knowledge of the essential facts constituting the claim, whether there was a reasonable excuse for the delay and whether the delay substantially prejudiced the public corporation’s ability to defend on the merit demonstrates entitlement to the relief. (Matter of Gerzel v City of New York, 117 AD2d 549, 550.) Petitioner Vincent Soreca was allegedly injured while at a Police Department firing range when Housing Authority Police Officer Ortiz, a training instructor, fired a shot causing Soreca pain and a ringing sensation. We impute áctual knowledge to respondent since, its employee was at the scene and involved in the incident and filed a witness statement setting forth the facts and his involvement. (Matter of Briggs v City of Geneva, 130 AD2d 942.) Further, respondent has failed to demonstrate substantial prejudice flowing from petitioners’ delay in filing and we believe it unlikely, in any event, that prejudice would flow given that actual knowledge is imputable to respondent. (Matter of Ruiz v New York City Health & Hosps. Corp., 165 AD2d 75, 81.) Concur—Murphy, P. J., Wallach, Kupferman and Ross, JJ.