Woods v. Geneva Housing Authority

210 A.D.2d 991, 621 N.Y.S.2d 816

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1994
• Docket: Appeal No. 1
• Status: Published

Opinion

—Order unanimously reversed on the law with costs and application granted. Memorandum: Supreme Court erred in denying the application to file a late notice of claim upon the grounds that claimants failed to establish that the disability of infancy was the cause of their delay in filing the notice of claim on behalf of their infant son (see, Matter of Meredithe C. v Carmel Cent. School Dist., 192 AD2d 952, 953; Matter of Lannon v Town of Henrietta, 109 AD2d 1067) and that they failed to show that respondent would not be prejudiced by the delay in filing (see, Matter of Feliciano v New York City Hous. Auth., 188 AD2d 296, 297; Matter of Rotoli v Town of Gaines, 184 AD2d 1085, 1086). Where, as here, the claimant is an infant, respondent was given notice of the accident and claim shortly after expiration of the 90-day period, and respondent failed to show that it has been prejudiced by the delay, the application for permission to file a late notice of claim must be granted (see, Feliciano v New York City Hous. Auth., supra).

Because we reverse the initial order of the court that denied claimants’ application for permission to file late, it is unnecessary to consider whether the court erred in denying renewal of that motion. (Appeal from Order of Supreme Court, Ontario County, Henry, Jr., J.—Late Notice of Claim.) Present—Den-man, P. J., Balio, Fallon, Callahan and Davis, JJ.