Williams v. New York City Housing Authority

125 A.D.2d 258, 509 N.Y.S.2d 544, 1986 N.Y. App. Div. LEXIS 62534

Opinion

— Appeal from order, Supreme Court, New York County (Allen Murray Myers, J.), entered July 1, 1985, denying plaintiff’s motion for leave to file a late notice of claim, dismissed, without costs or disbursements, as superseded by the appeal from the order of October 21, 1985. Order of the same court and Justice, entered October 21, 1985, denying plaintiff’s motion to renew and reargue his motion for leave to file a late notice of claim, unanimously reversed, on the law and on the facts and in the exercise of discretion, and the motion granted, without costs or disbursements.

We agree with Special Term that plaintiff, on his original application for leave to file a late notice of claim, failed to offer a satisfactory explanation for his tardiness. Thus, the motion was properly denied. On the application for renewal, however, plaintiff demonstrated a physical incapacitation sufficient to excuse the delay. Special Term, in its discretion, should have considered this evidence. The delay was only 22 days beyond the statutory 90 days. The stairway defect of which plaintiff complains is a static condition. Defendant is unable to show prejudice. The injuries appear to be serious. In such circumstances, the motion, on renewal, should have been granted. Concur — Sullivan, J. P., Ross, Asch, Kassal and Ellerin, JJ.