Opinion
2001-05265
Submitted May 28, 2002.
June 25, 2002.
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated April 23, 2001, which denied the application.
Scott Baron Associates, P.C., Howard Beach, N.Y. (Stephen Drummond of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Elizabeth I. Freedman of counsel; Christine M. Kelly on the brief), for respondent City of New York.
DAVID S. RITTER, J.P., MYRIAM J. ALTMAN, NANCY E. SMITH, GLORIA GOLDSTEIN, JJ.
ORDERED that the order is reversed, as a matter of discretion, with costs, the application is granted, and the notice of claim is deemed served.
Whether leave to serve a late notice of claim should be granted pursuant to General Municipal Law § 50-e(5) is a matter of discretion. This court is "vested with the same power and discretion" that the Supreme Court possesses (Phoenix Mut. Life Ins. Co. v. Conway, 11 N.Y.2d 367; see also Matter of Attorney General of State of N.Y. v. Katz, 55 N.Y.2d 1015; O'Brien v. Vassar Bros. Hosp., 207 A.D.2d 169, 171; Wyda v. Makita Elec. Works, 162 A.D.2d 133).
In this case, the prescribed 90-day period expired on February 16, 2001, and the motion seeking leave to serve a late notice of claim was presented to the Supreme Court on February 27, 2001, a mere 11 days later. There is no basis to presume that the ability of the City of New York to investigate the claim diminished in any way during that scant 11-day period, and hence, there is no basis upon which to conclude that this short delay resulted in substantial prejudice. Under these circumstances, as a matter of discretion, the application should have been granted (see Ahferom v. Dormitory Auth. of the State of N.Y., 282 A.D.2d 343; Weiss v. City of New York, 237 A.D.2d 212; Matter of Thornhill v. City of New York Hous. Auth., 232 A.D.2d 317; Matter of Isakov v. City of New York, 221 A.D.2d 531; Matter of Rivas v. New York City Hous. Auth., 188 A.D.2d 390).
RITTER, J.P., ALTMAN, SMITH and GOLDSTEIN, JJ., concur.