Sykes v. Buffalo Municipal Housing Authority

—Order unanimously reversed on the law with costs and application granted in accordance with the following Memorandum: Plaintiff appeals from an order denying her application to serve a late notice of claim pursuant to General Municipal Law § 50-e (5). She was injured in an accident that occurred on September 5, 1998. The 90-day statutory period expired on December 4, 1998, and plaintiff filed her motion on February 1, 1999. On September 21, 1998, plaintiff gave defendant written notice of her accident, and the next day defendant conducted an investigation and took photographs of the accident scene. Although defendant’s manager refutes plaintiff’s allegation that the manager misled plaintiff into believing that her rights were thereby preserved, he admits that he offered to send her “paperwork” to defendant’s administrative offices. In response to plaintiff’s application, defendant made no claim of prejudice. Given the brief period of delay in filing the application (see, Barnes v New York City Hous. Auth., 262 AD2d 46 [56 days]; Matter of Thornhill v New York City Hous. Auth., 232 AD2d 317 [two months]) and the lack of prejudice, Supreme Court abused its discretion in denying plaintiff’s application (see, Reed v City of Lackawanna, 221 AD2d 967). Even if plaintiff has “not demonstrated a strong excuse for [the] delay in filing, the presence or absence of any one of the numerous relevant factors the court must consider is not determinative” (Salvaggio v Western N. Y. Regional Off-Track Betting Corp., 203 AD2d 938, 938-939; see, Matter of Affleck v County of Nassau, 240 AD2d 569, 570). Thus, we reverse the order and grant the application upon condition that the proposed notice of claim is served upon defendant within. 20 days of service of a copy of the order of this Court with notice of entry. (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Notice of Claim.) Present — Wisner, J. P., Hurlbutt, Scudder and Lawton, JJ.