Opinion
May 1, 1989
Appeal from the Supreme Court, Suffolk County (Gowan, J.).
Ordered that the order is affirmed, without costs or disbursements.
The court did not improvidently exercise its discretion in granting the petitioner's application for leave to serve a late notice of claim (see, Cohen v Pearl Riv. Union Free School Dist., 51 N.Y.2d 256; General Municipal Law § 50-e). The petitioner presented sufficient facts to establish that there was a nexus between his infancy and the delay in filing a notice of claim and that the Town of Babylon had actual knowledge of the essential facts of the incident within 90 days of its occurrence. Under the circumstances, we agree with the court's determination that the disability of infancy outweighed any prejudice to the town from the delay (see, Matter of Tetro v Plainview-Old Bethpage Cent. School Dist., 99 A.D.2d 814; cf., Matter of Andersen v Nassau County Med. Center, 135 A.D.2d 530; Matter of Katz v Rockville Centre Union Free School Dist., 131 A.D.2d 574, lv denied 71 N.Y.2d 801).
Although the petitioner failed to explain the five-month delay between the time he reached his majority and the commencement of this proceeding, the absence of an acceptable excuse is not fatal (see, Quirk v Morrissey, 106 A.D.2d 498; Matter of Cicio v City of New York, 98 A.D.2d 38; cf., Matter of Coyne v Cold Spring Harbor Cent. School Dist., 132 A.D.2d 660). The petitioner filed a notice of claim within 90 days of his eighteenth birthday and, as previously noted, the town had actual knowledge of its potential liability at the time the incident occurred. Kunzeman, J.P., Rubin, Eiber and Rosenblatt, JJ., concur.