Opinion
Submitted September 26, 2001.
November 13, 2001.
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, Kings County (Bruno, J.), dated September 18, 2000, which denied the petition.
Meyers, Meyers Kelmachter (Norman S. Goldsmith, New York, N.Y., of counsel), for appellant.
Michael D. Hess, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Cheryl Payer of counsel; Tara Kilfoyle on the brief), for respondents.
Before: CORNELIUS J. O'BRIEN, J.P., SONDRA MILLER, LEO F. McGINITY, ROBERT W. SCHMIDT, SANDRA L. TOWNES, JJ.
ORDERED that the order is reversed, as a matter of discretion, with costs, and the petition is granted.
The petitioner allegedly was injured in a motor vehicle accident on November 28, 1999, on the premises of a water treatment facility operated by the defendants. The petitioner was employed by a private company as a security guard on the premises. Six months later, he commenced this proceeding for leave to serve a late notice of claim on the defendants.
The Supreme Court improvidently exercised its discretion in denying the petition. The petitioner established that the defendants had actual knowledge of the essential facts constituting the claim within 90 days of its accrual (see, Matter of Battle v. City of New York, 261 A.D.2d 614). Thus, there was no prejudice to the defendants as a result of the delay. Under the circumstances, the absence of an excuse for the delay in serving a notice of claim was not fatal to the petition (see, Matter of Affleck v. County of Nassau, 240 A.D.2d 569; Matter of Alvarenga v. Finlay, 225 A.D.2d 617).
O'BRIEN, J.P., S. MILLER, McGINITY, SCHMIDT and TOWNES, JJ., concur.