Opinion
May 31, 1991
Appeal from the Supreme Court, Richmond County (Leone, J.).
Ordered that the judgment is reversed, as an exercise of discretion, with costs, and the application is denied.
The infant petitioner was injured while riding his bicycle when he became caught on a twisted and broken chain link fence which surrounded a building owned by the New York City Housing Authority (hereinafter NYCHA). The instant application for leave to file a late notice of claim was made 10 1/2 months after the cause of action accrued. The granting of the petitioner's application was an improvident exercise of discretion since the NYCHA did not acquire actual knowledge of the essential facts constituting the claim within 90 days after the claim arose, or within a reasonable time thereafter, nor did the petitioner provide a valid excuse for the delay (see, General Municipal Law § 50-e; Matter of Andersen v Nassau County Med. Center, 135 A.D.2d 530; Matter of Mallory v City of New York, 135 A.D.2d 636).
The availability of the toll of infancy in a proceeding pursuant to General Municipal Law § 50-e (5) does not require the granting of leave to serve a late notice of claim in every case (see, Cohen v Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 265-266; Caparco v Town of Brookhaven, 133 A.D.2d 803). Indeed, the absence of a showing that the delay is the product of the infancy itself is a factor which militates against granting such relief (see, Matter of Andersen v Nassau County Med. Center, supra; Matter of Albanese v Village of Floral Park, 128 A.D.2d 611, 613). The petitioner failed to present sufficient facts to establish a nexus between the disability of infancy and the delay in filing the notice of claim. Although the infant's mother claims that she reported the accident to the resident manager of the NYCHA housing complex several days after its occurrence and provided all the relevant information necessary to constitute actual notice, no documentary or other proof was provided in the moving papers to demonstrate that the accident report was actually filed (see, Matter of Perez v New York City Hous. Auth., 156 A.D.2d 177). The petitioner's contention that she was unaware of the requirements of the statute is not sufficient to excuse the delay in filing the notice of claim since ignorance of the statute has been held to be an unacceptable excuse (see, Matter of Mallory v City of New York, supra; Figueroa v City of New York, 92 A.D.2d 908; see also, Matter of Perez v New York City Hous. Auth., supra). Thompson, J.P., Brown, Kunzeman and Balletta, JJ., concur.