Matter of O'Rourke v. New York City Hous. Auth.

Matter of O'Rourke v New York City Hous. Auth. (2022 NY Slip Op 02365) Matter of O'Rourke v New York City Hous. Auth. 2022 NY Slip Op 02365 Decided on April 12, 2022 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: April 12, 2022 Before: Manzanet-Daniels, J.P., Kapnick, Webber, Gesmer, Oing, JJ. Index No. 802974/21E Appeal No. 15715 Case No. 2021-03828 [*1]In the Matter of Robert O'Rourke et al., Petitioners-Respondents, v New York City Housing Authority, Respondent-Appellant, The City of New York, Respondent. Herzfeld & Rubin, P.C., New York (Sharyn Rootenberg of counsel), for appellant. Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about May 25, 2021, which, to the extent appealed from as limited by the briefs, granted the petition for leave to file a late notice of claim against respondent New York City Housing Authority (NYCHA), unanimously reversed, on the law and the facts, without costs, and the petition denied. Petitioners failed to establish that NYCHA acquired actual knowledge of the facts constituting their claim within 90 days after the claim arose or a reasonable time thereafter and failed to establish that NYCHA was not prejudiced by the delay (see General Municipal Law § 50-e[5]; Zapata v New York City Hous. Auth., 115 AD3d 606 [1st Dept 2014]). Petitioners also failed to establish a reasonable excuse for the delay, particularly in light of the transitory nature of the alleged defective condition — a hole that was not visible in the uneven grass and mud during a rainstorm (see McClatchie v City of New York, 105 AD3d 467 [1st Dept 2013]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 12, 2022