Opinion
03-15-2017
EBONI B., etc., Individually and as Parent and Natural Guardian of Skylah N., Plaintiff–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.
Gaines, Novick, Ponzini, Cossu & Venditti, LLP, White Plains (Denise M. Cossu of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
Gaines, Novick, Ponzini, Cossu & Venditti, LLP, White Plains (Denise M. Cossu of counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
FRIEDMAN, J.P., ANDRIAS, GISCHE, WEBBER, JJ.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered January 25, 2016, which granted defendant's motion to dismiss the complaint and denied plaintiff's cross motion for leave to file a late notice of claim, unanimously modified, on the law and in the exercise of discretion, to deny defendant's motion insofar as it sought dismissal of the claim brought on the infant plaintiff's behalf, and grant plaintiff's cross motion, to the extent that the notice of claim is deemed served on behalf of the infant plaintiff, and otherwise affirmed, without costs.
Although plaintiff did not present a reasonable excuse for the delay in serving a notice of claim (see e.g. Colarossi v. City of New York, 118 A.D.3d 612, 612, 989 N.Y.S.2d 24 [1st Dept.2014] ), and although defendant did not have actual knowledge of the facts constituting the claim within the statutory period or a reasonable time thereafter, leave to serve a late notice of claim on behalf of the infant plaintiff is warranted based on other relevant factors (see General Municipal Law § 50–e[5] ).
The infant plaintiff was approximately nine months old at the time that he allegedly sustained injuries as a result of an exposed hot water pipe in his family's apartment, in a building owned and operated by defendant. This infancy weighs in favor of granting leave to serve a late notice of claim, regardless of the lack of a nexus between the delay and infancy (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 538, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006] ). In addition, defendant failed to address plaintiff's showing that defendant would not be substantially prejudiced by the 10–month delay in seeking leave since the condition of the exposed pipes remained unchanged from the time of the accident (Matter of Richardson v. New York City Hous. Auth., 136 A.D.3d 484, 485, 24 N.Y.S.3d 308 [1st Dept.2016], lv. denied 28 N.Y.3d 905, 2016 WL 6209312 [2016] ). Given these factors, which the motion court failed to address, and given the remedial nature of the statute, the motion court improvidently exercised its discretion in dismissing the infant plaintiff's claim (see Matter of Thomas v. City of New York, 118 A.D.3d 537, 537–538, 988 N.Y.S.2d 152 [1st Dept.2014] ).
To the extent that the complaint states a derivative claim on behalf of the infant plaintiff's mother, she is not entitled to leave to serve a late notice of claim on her behalf (see Matter of Bensen v. Town of Islip, 99 A.D.2d 755, 756, 471 N.Y.S.2d 670 [2d Dept.1984], appeal dismissed 62 N.Y.2d 798, 477 N.Y.S.2d 330, 465 N.E.2d 1266 [1984] ).
Plaintiff's noncompliance with the pleading requirements of Public Housing Law § 157(1) is a nonjurisdictional defect that may be remedied by amendment (see CPLR 3025[b] ; Snyder v. Board of Educ. of Ramapo Cent. School Dist. No. 2, Town of Ramapo, Rockland County, 42 A.D.2d 912, 347 N.Y.S.2d 727 [2d Dept.1973] ).