| Laguna v New York City Hous. Auth. |
| 2010 NY Slip Op 04866 [74 AD3d 498] |
| June 8, 2010 |
| Appellate Division, First Department |
| Cesar Laguna et al., Respondents, v New York CityHousing Authority, Appellant. |
—[*1] Barton Barton & Plotkin, LLP, New York (Thomas P. Giuffra of counsel), forrespondents.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered September 2, 2009,which, inter alia, granted leave to serve a late notice of claim to plaintiffs infant and mother ofthe infant, unanimously affirmed, without costs.
The infant's father allegedly sustained injuries on July 26, 2007 as a result of an assault androbbery while in an elevator on defendant's premises; the infant allegedly sustainedpost-traumatic stress disorder (PTSD) as a result of witnessing the assault on his father; and theinfant's mother allegedly sustained damages as a result of losing the infant's services andincurring medical expenses on his behalf. After the father served a timely notice of claim onOctober 23, 2007, and after a complaint was filed on or about September 5, 2008 naming theinfant and the mother as well as the father as plaintiffs, the infant and mother moved in lateJanuary 2009 for leave to serve a late notice of claim. According to the mother, the infant'sinjuries did not begin to manifest until January 2008 and were not diagnosed until March 2008.It also appears that on January 30, 2008, the father testified at his General Municipal Law§ 50-h hearing that the child was with him on the elevator; on July 24, 2008, prior to theSeptember 2008 filing of the complaint, the mother served a notice of claim on behalf of theinfant and herself alleging the child's injury and her damages but, concerned that the notice wasdefective, replaced it with a substantively identical notice of claim served on September 12,2008, immediately after the filing of the complaint; and a section 50-h hearing was held for themother on October 27, 2008, at which she gave detailed testimony regarding the infant's claims.The order on appeal deemed the September 12, 2008 notice of claim timely served nunc protunc.
Leave to serve the September 12, 2008 notice of claim was properly granted even assumingthat the alleged post-90-day first manifestation of illness and subsequent diagnosis of PTSD donot excuse the subsequent 10-to-12-month delay in moving for leave, and that this subsequentdelay was not, in any "factually demonstr[able]" way (Williams v Nassau County Med. Ctr., 6 NY3d 531, 538 [2006]),caused by infancy. Indeed, we would grant leave even if the infant's injuries had immediatelymanifested themselves. It would be " 'unfair and unjust' to deprive the infant of a remedy basedon [his] mother's ignorance of the law" (Pearson v New York City Health & Hosps. Corp. [Harlem Hosp. Ctr.],43 AD3d 92, 94 [2007], affd 10 NY3d 852 [2008]), where the father's timely noticeof claim gave defendant actual knowledge of the essential facts constituting [*2]the infant's and mother's claims of negligent maintenance ofbuilding security (see Heredia v City of New York, 141 AD2d 473 [1988]), defendanthad actual notice of the infant's and mother's claims of injuries and damages within a reasonabletime after the 90-day period (see Weiss v City of New York, 237 AD2d 212, 213 [1997][late notice of claim served without leave provided City with actual knowledge of essentialfacts]; Pearson, 43 AD3d at 94 [same]), and defendant fails to explain why, as it claims,the delay has prejudiced its ability to investigate the infant's medical history (seeHeredia, 141 AD2d 473). Concur—Mazzarelli, J.P., Saxe, Nardelli, DeGrasse andManzanet-Daniels, JJ.