Preview
W
FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020
EXHIBIT 4
FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020
D: WEyl YORK COUNTY 07/24/2020 04
CLERK
At a IAS Part 35 of the Supreme
Court of the State of New York, held
in and for the County ofNew York at
the courthouse located at 60 Centre
Street, New York, NY. on the
24th day of July , 2020
P R E 8 E N T
HON. CAROL EDMEAD
J.S.C.
X
SHIRLEY PETWAY, Index #154D65/202D
Petitioner,
ORDER TO SHOW
against CAUSE
NEW YORK CITY HOUSING AUTHORITY,
Respondent.
X
Upon meding and filing the Affirmation of ALISON R. KEENAN, an
attomeyduly licensed to practice law In the Stata of New York, afirmed the
55
day of June, 2020, the Affidavit of Petitioner swom to on the 2nd day of
June, 2020, the Notice of Claim filed upon NEW YORK CITY HOUSING
AUTHORITY, on January 15, 2020, and sufAcient cause having been shown
themln,
Let the Respondent, NEW YORK CITY HOUSING AUTHORITY show
cause before this coud at IAS PART 35 to be held in and for the
thereof,
VIA SKYPE
County of New York, akfhexceuillhouskiesatedcatxFp9x0antle:dikaetxntwks
August mass in
Mcdghlanchisdson the26th day of , 2020, at
afternoort
the inanocaof that day, or as soon thereafter as counsel can be heard, why
an Order should not be made (a) deeming the Notice of Claim served upon
1 of 2
FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020
FILED: NEW YORK COUNTY CLERK 07( 24(202 O D4 : 39 PB4
INM h W M ,2020
NYSCEF DOC. NC. 9 RECEIVE3 NYSCEF: 07/24!2020
NEW YORK CITY HOUSING AUTHORITY on January 15, 2020 herein as
filed nunc pro tune, and, for such other and further and different relief
tirnely
as to this court seem just and proper under the circumstances; and it is
may
fufther,
ORDERED that sentice of a of this Order together with the
copy
papers upon which it is based, be served upon NEW YORK CITY HOUSING
AUTHORITY, 250 Broadway, New York. NY 10007 the respondent herein, by
mail on or before the 3ht of
mailing a true copy thereof by regular day
July , 2020.
E N T E R
Response papers, if any, to be served and
JA-C
e-filed byAugust 31st 2020.
NO REPLY ALLOWED.
JAC.
2 of 2
FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020
IFIED: NEW TORE COUNTY 06/18/2020 10 : 53 INDEX NO. 154065/2D20
ULERK ANI
NYSCEF DOC. R0. 3 RECEIVED NYSCEF: 06/18/2D20
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
SHIRLEY PE1WAY, Index # 155s/2020
PeWioner,
AFFIRMATION
-against-
NEW YORK CITY HOUSING AUTHORITY,
Respondent.
X
ALISON R. KEENAN an attemey duly admitted to practice law in the
Courts of the State of New York, affirms the truth of the following under the
Penelties of perjury:
1. I am an attomey In the law Brm of BURNS & HARRIS, ESQS.,
attorneys for the petitioner In the captIoned rnatter and am fully familiar with
the facts and circumstances herein based upon my review of the file
maintained in this ofilee.
2. I submit this Affirmation in support of the instant motion for an
Order granting the Notice of Claim filed upon NEW YORK CITY HOUSING
AUTHORITY on January 15, 2020, deemed timely filed mmopro fune.
3 This is a claim for personal injuries sustained by claimant,
SHIRLEY PETWAY as a result of the negligence of the respondent NEW
YORK CITY HOUSING AUTHORITY In its ownership, operation,
maintenance, management, supervision and control of premises located at 70
Metealm X Boulevard, In the County, City and State of New Yorl(, more
specifically Apt. 2J at said premisea
1 of 7
FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020
y,2D
NYSCEF
•
DDC.
NE1I
NO.
YOMt
3
COUN'rY m RECEIVED
INDEX
NYSCEF:
No. 154065/2020
D6/18/2D20
4. The claimant sustained personal Injurina when she tripped and
fiell during the transition from the halhray to the bathmom of Apt. 2J of
premises located at 70 Malcolm X Blud., in the County, Cky and State of New
York. Claimant was caused to fall due to the dangerous, defective,
hazardous, unsafe, bmken, uneven, raised, missing, broken, cracked, poorly
maintained, dilapidated, wom and/or depressed ilooring at said location which
was owned and operated by NEW YORK CITY HOUSING AUTHORITY. As
a result of the aforementioned fall, petitioner was caused to sustain serious
personal injuries including but not limited to a tactured hip fequiring a total
hip replacement as a result of the negligence of the Respondent
5. On January 13, 2020, Petitioner SHIRLEY PETWAY retained
our allice to represent tier in the above-captioned matter, A Notice of Claim
was prepared and served immediately upon the respondent, NEW YORK
CITY HOUSING AUTHORITY, on January 15, 2020. A copy of the Notice of
Claim la annexed hereto as Exhibit "A".
THERE IS NO PREAIDICE TD THE RESPONDENT
6. The petitioner herein has been In and out of the hospital since
the date of accident and additionally- the petitioner was not aware of the IIme
Ilmits necessary to file a Notice of Claim. Further, Ms. Petway was admitted
to a nursing and rehabiBation home and was under a lockdown with no
visitors allowed until she was discharged on May 295, 2020 due to the
"B"
coronawbus pandemic and executhe orders. Attached hereto as IBEhibit
is a copy of Ms. Petway's hospitai record. There is no prejudice against the
2 of 7
FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020
INDEX No. 154065/ 2020
[FILED: NEW YORK COUNTY CLERK 0 6/ 18/2020 10 ; 53 Al$
NYSCEF DOC. No. 3 RECEIVED Nz5CEF: D6/12/2020
respondento herein. Furtherrnore, the undariying facts of the claim became
known to tespondent shortly aller Ra occurrence. Peligioners son Louis John
was present in the apartment when he heard petitioner fall and went to her
aide and transported petitioner to Harlem HospiteL Shorgy thereafter Mr.
Louia John reported the accident to teepondent, NEW YORK CITY HOUSING
AUTHORITY, Ms. Roy, the housing assistant in her office at 90 Lenox
"C"
Avenue, New York,. NY. Attached hereto as Exhibit is an afRdavit tom
Louis John.
7. inLopez1New York_City Housina Aü:harity. 225 A.D.2d 4EL
639 N.Y.S.2d 389 (18 Dept the court held that the lower court
Mamh 1998),
did not improvidently examise Its discretion In pemtiting pettgonerto file a
notice of claim six and one-half months after his accident as he did not
ascertain the severity of his injury until three months ater the aceldent. and
the underlying facts of the claim became known to respondent shortlyater
the expiration of the BCkfay statutory time period. The court further added
that even if the condition which caused the accident- the lack of
allegedly
handrails an a staircase - had changed, it was that respondent, a
likely
authority, had made the change or made a record of L M.
housing
8. Similarly, the court found In the Matter of Nicholas Annis v. New
629 (18 Dept
York City Transit Authority. 108 A.D.2d 64$, 486 N.Y.S.2d
1985), that because the authority had actual knowledge of the occurrence, no
prejudice resulled to t from the two-day delay in serving a notice of claim
which, the passenger alleged, was not Eled earlier because he initially
3 of 7
FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020
lFILED: COUNTY CLERK INDEX NO. 154065/2020
NEW YONE
NYSCEF DOC. No. 3 RECEIVED NYSCEF: 06/18/2020
believed that his injury was mlatively minor, but it later became progressively
worse. The court further found that the Issue relaUng to whether the
passenger was actually injured in the derallment was to be determined In the
action and was not a requisite to the filing of a notice of claim. jd..
9. In the present case at hand, petitioner's son told respondent of
"C"
the accident, see Exhibit Respondent knew ofthe underlying factsright
away. Them would be no substantial prejudice to respondent.
10. In the Matter of Gerzel v. New York City Health & Hospitals
Qgra,117 A.D.2d 649, 499 N.Y.S.2d 60 (1st Dept. 1986), the Court stated
that "counters failure to present a more reasonable explanation is without
prejudice."
shinificance given...the City's failure to show substantial See
Rochenberner v. NGBSauCounty Medical Cenlar. 1121 A.D.2d 153 (2d
150,
Dept.1985).
11, The delay in filing the Notice of Claim, In this case did not
substantiaBy prejudlon Respondent's ability to defend on the merits. See,
Germl.suns. The Court in Garzel held:
"The only legitimate purpose served by Secton
60(e) is to pmtect the public corporation against
spurious chrims and to assure ft 'an adequate
opportunity...to explore the merits of the claim
avalable'."
while Inkmathm is stRI readBy Teresta
v. NEW YORK CITY HEALTH & HOSPITALS
998P., 304 N.Y.440, 108 N.E.2d 397 (1952);
Gerzel v. NEW YORK CITY HEALTH &
tiO.SPITALS-CORP..sup_[g
The Courts have further held:
"...Section 50(e) empowers the courts to evaluate
requests br rolleI from the 90 day filing requirement by
4 of 7
..
FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020
h: NEN YORK COUIREY
INDEX NO. 154065/2020
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2020
airiking an 'equitable balans...between a public
corporation's reasonable need for prompt notification of
claims against it and an irajured party's interest in just
compensaton'."
Helman v. NEW YORK CITY_HEALT1L&
floSPITALS CORP.. 65 A.D2d 25, 26 447 N.Y.S.2d 258
{tat Dept. 1982); Gerzel v. NEW YORK CITY HEALTH &
tLO-SP-.ITAIAGEE. als g .
12. The within rration is made within one year and BD days after the
date of the incident. See Torinrici v. East Rockaway Public School District No.
19 191 A.D2d 594 N.Y.S.2d 335(2d Afnbrpsano v.
495, Dept., 1993);
(3d
Canaloharle central School District 174 A.D2d 914, 571 N.Y.S.2d 612
Dept.,1991); Friedman v.. Svonset Central School District, 154 A.D.2d 337,
(2"
646 N.Y.S.814 Dept, 1989).
13. it Is reapectfully submitted that a reasonable explanation for
untimeBnees must be considered, together with all of the mlevant factors in
deciding whether to grant 9te extension. In Elvono v. City of New York. 240
A.D2d 689 (2nd Dept. the Court stated:
1997),
"although the excuse (endered hy Mr. Buono for
a failum to serve a Notice of Claim within the
prescrbed lime is tenuous, this factor alone
does not wanant denial of the instant
applica6on."
14. Similarly, la Relsse V. Cqµnty of Nassau. 141 A.D.2d 649, 529
N.Y.S.2d 371 (2d Dept. the Court stated that all relevant facts must ba
1988),
considered despite the fact that athe reasonableness of the Petim
debatable."
excuse of the delay Is
15. The Court of Appeals held in Etagry y, City of Rya. 44 N.Y.2d 398,
406 N.Y.2d 9, 377 N E.2d 435 (1978), thal the standards of Sec. 50(e)(a) of
5 of 7
FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020
YORK COUNTY CLERK 06/18/2020 10:53 AN|
mm NO. W065/2020
WYSCEF DOC. No. 3 RECEIVED NYSCEF: 06/1.8/2020
the General Municipal Law were modilled by the Legislature so that the
grounds upon which a court may allow inte illing were expanded and the time
within which an application ibr such relief can be made was lengthened.
16. The Court went on to say that the standards of Soc. 50(e) are
far more classic. in substance, they equhe a court to consider not only the
factors to which it was formerly limited, but other newly specilled ones, along
circumstances."
with "all other relevant facts and Moreover, In deciding
whether to exercise lis discretton, the Courts atlantion is also focused upon
whether the public corporation or those acting for it, acquired actual
knowledge of the essential facts of the claim within the ninety-day period or a
reasonable time themafter. See Nnael v. County of Suffolk. 92 AD.2d 545,
(2d
459 N.Y.2d 1t2 Dept. 1983); Ansaldo v. Citvof New York. 92 .D.2d 557,
N.Y.S.2d (2d 1983).
459 302 Dept
17. The delay in illing the Notice of Clairn, in this case did not
substantiaRy prejudice Respondents ability to defend on the merits.
18. Hence, since there is no prejudice to the respondent, end
clahnant brought this spplication expeditiously, this Honorable Cowt should
grant the reAef sought herein.
19. Claimant would be prejudiced were this appilcation
extremely
denied, In that It would prevent her from bringing a mettlorious action as a
result of the negBgence of the respondent
"D"
21. Annexed hereto as Exhibit is an Affldavit of the Petitioner
in further support of this application.
6 of 7
FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020
22. No prior application for the relief sought herein has been made.
23. It Is respectfully requested that an Order be granted herein
pennitting the Notloe of Claim served upon.the respondent be deemed timely
served nurtc pro tunc.
WHEREFORE, it is respectfully .request=d that the instant Order to
Show Cause be In all respects and for other and further
granted, relief as to
this court rnay seem just and proper.
Dated: New York, NY
June 5, 2020
ALISON R. KEENAN
FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020
EXHIBIT A
FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020
NOTICE OF CLAIM
In the Matter of the Claim of
SHERLEY PETWAY,
p
NEW YORK CITY HOUSING AUTHORITY. T
TO: NEW YORK CITY HOUSING AUTHORITY, 250 Broadway, New York, New York 10007.
PLEASE TAKE NOTICE, that the undersigned niaimant
hereby makes claim and demand against NEW
YORK CITY HOUSEWG AUTHORrry, its agencies, agents, servants and/or employees, as follows:
1. The name and address of the elaimant and claimeant's attorneys:
SEERLEY PETWAY BURNS & HARRIS, ESQS.
70 MalcolmX Blvd., Apt 23 233 Broadway, Suite 900
New York, New York 10026 New York, New York 19279
(212)393-1000
2. Thenature of the claim: Personal
Preview
W FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020 EXHIBIT 4 FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020 D: WEyl YORK COUNTY 07/24/2020 04 CLERK At a IAS Part 35 of the Supreme Court of the State of New York, held in and for the County ofNew York at the courthouse located at 60 Centre Street, New York, NY. on the 24th day of July , 2020 P R E 8 E N T HON. CAROL EDMEAD J.S.C. X SHIRLEY PETWAY, Index #154D65/202D Petitioner, ORDER TO SHOW against CAUSE NEW YORK CITY HOUSING AUTHORITY, Respondent. X Upon meding and filing the Affirmation of ALISON R. KEENAN, an attomeyduly licensed to practice law In the Stata of New York, afirmed the 55 day of June, 2020, the Affidavit of Petitioner swom to on the 2nd day of June, 2020, the Notice of Claim filed upon NEW YORK CITY HOUSING AUTHORITY, on January 15, 2020, and sufAcient cause having been shown themln, Let the Respondent, NEW YORK CITY HOUSING AUTHORITY show cause before this coud at IAS PART 35 to be held in and for the thereof, VIA SKYPE County of New York, akfhexceuillhouskiesatedcatxFp9x0antle:dikaetxntwks August mass in Mcdghlanchisdson the26th day of , 2020, at afternoort the inanocaof that day, or as soon thereafter as counsel can be heard, why an Order should not be made (a) deeming the Notice of Claim served upon 1 of 2 FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020 FILED: NEW YORK COUNTY CLERK 07( 24(202 O D4 : 39 PB4 INM h W M ,2020 NYSCEF DOC. NC. 9 RECEIVE3 NYSCEF: 07/24!2020 NEW YORK CITY HOUSING AUTHORITY on January 15, 2020 herein as filed nunc pro tune, and, for such other and further and different relief tirnely as to this court seem just and proper under the circumstances; and it is may fufther, ORDERED that sentice of a of this Order together with the copy papers upon which it is based, be served upon NEW YORK CITY HOUSING AUTHORITY, 250 Broadway, New York. NY 10007 the respondent herein, by mail on or before the 3ht of mailing a true copy thereof by regular day July , 2020. E N T E R Response papers, if any, to be served and JA-C e-filed byAugust 31st 2020. NO REPLY ALLOWED. JAC. 2 of 2 FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020 IFIED: NEW TORE COUNTY 06/18/2020 10 : 53 INDEX NO. 154065/2D20 ULERK ANI NYSCEF DOC. R0. 3 RECEIVED NYSCEF: 06/18/2D20 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X SHIRLEY PE1WAY, Index # 155s/2020 PeWioner, AFFIRMATION -against- NEW YORK CITY HOUSING AUTHORITY, Respondent. X ALISON R. KEENAN an attemey duly admitted to practice law in the Courts of the State of New York, affirms the truth of the following under the Penelties of perjury: 1. I am an attomey In the law Brm of BURNS & HARRIS, ESQS., attorneys for the petitioner In the captIoned rnatter and am fully familiar with the facts and circumstances herein based upon my review of the file maintained in this ofilee. 2. I submit this Affirmation in support of the instant motion for an Order granting the Notice of Claim filed upon NEW YORK CITY HOUSING AUTHORITY on January 15, 2020, deemed timely filed mmopro fune. 3 This is a claim for personal injuries sustained by claimant, SHIRLEY PETWAY as a result of the negligence of the respondent NEW YORK CITY HOUSING AUTHORITY In its ownership, operation, maintenance, management, supervision and control of premises located at 70 Metealm X Boulevard, In the County, City and State of New Yorl(, more specifically Apt. 2J at said premisea 1 of 7 FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020 y,2D NYSCEF • DDC. NE1I NO. YOMt 3 COUN'rY m RECEIVED INDEX NYSCEF: No. 154065/2020 D6/18/2D20 4. The claimant sustained personal Injurina when she tripped and fiell during the transition from the halhray to the bathmom of Apt. 2J of premises located at 70 Malcolm X Blud., in the County, Cky and State of New York. Claimant was caused to fall due to the dangerous, defective, hazardous, unsafe, bmken, uneven, raised, missing, broken, cracked, poorly maintained, dilapidated, wom and/or depressed ilooring at said location which was owned and operated by NEW YORK CITY HOUSING AUTHORITY. As a result of the aforementioned fall, petitioner was caused to sustain serious personal injuries including but not limited to a tactured hip fequiring a total hip replacement as a result of the negligence of the Respondent 5. On January 13, 2020, Petitioner SHIRLEY PETWAY retained our allice to represent tier in the above-captioned matter, A Notice of Claim was prepared and served immediately upon the respondent, NEW YORK CITY HOUSING AUTHORITY, on January 15, 2020. A copy of the Notice of Claim la annexed hereto as Exhibit "A". THERE IS NO PREAIDICE TD THE RESPONDENT 6. The petitioner herein has been In and out of the hospital since the date of accident and additionally- the petitioner was not aware of the IIme Ilmits necessary to file a Notice of Claim. Further, Ms. Petway was admitted to a nursing and rehabiBation home and was under a lockdown with no visitors allowed until she was discharged on May 295, 2020 due to the "B" coronawbus pandemic and executhe orders. Attached hereto as IBEhibit is a copy of Ms. Petway's hospitai record. There is no prejudice against the 2 of 7 FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020 INDEX No. 154065/ 2020 [FILED: NEW YORK COUNTY CLERK 0 6/ 18/2020 10 ; 53 Al$ NYSCEF DOC. No. 3 RECEIVED Nz5CEF: D6/12/2020 respondento herein. Furtherrnore, the undariying facts of the claim became known to tespondent shortly aller Ra occurrence. Peligioners son Louis John was present in the apartment when he heard petitioner fall and went to her aide and transported petitioner to Harlem HospiteL Shorgy thereafter Mr. Louia John reported the accident to teepondent, NEW YORK CITY HOUSING AUTHORITY, Ms. Roy, the housing assistant in her office at 90 Lenox "C" Avenue, New York,. NY. Attached hereto as Exhibit is an afRdavit tom Louis John. 7. inLopez1New York_City Housina Aü:harity. 225 A.D.2d 4EL 639 N.Y.S.2d 389 (18 Dept the court held that the lower court Mamh 1998), did not improvidently examise Its discretion In pemtiting pettgonerto file a notice of claim six and one-half months after his accident as he did not ascertain the severity of his injury until three months ater the aceldent. and the underlying facts of the claim became known to respondent shortlyater the expiration of the BCkfay statutory time period. The court further added that even if the condition which caused the accident- the lack of allegedly handrails an a staircase - had changed, it was that respondent, a likely authority, had made the change or made a record of L M. housing 8. Similarly, the court found In the Matter of Nicholas Annis v. New 629 (18 Dept York City Transit Authority. 108 A.D.2d 64$, 486 N.Y.S.2d 1985), that because the authority had actual knowledge of the occurrence, no prejudice resulled to t from the two-day delay in serving a notice of claim which, the passenger alleged, was not Eled earlier because he initially 3 of 7 FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020 lFILED: COUNTY CLERK INDEX NO. 154065/2020 NEW YONE NYSCEF DOC. No. 3 RECEIVED NYSCEF: 06/18/2020 believed that his injury was mlatively minor, but it later became progressively worse. The court further found that the Issue relaUng to whether the passenger was actually injured in the derallment was to be determined In the action and was not a requisite to the filing of a notice of claim. jd.. 9. In the present case at hand, petitioner's son told respondent of "C" the accident, see Exhibit Respondent knew ofthe underlying factsright away. Them would be no substantial prejudice to respondent. 10. In the Matter of Gerzel v. New York City Health & Hospitals Qgra,117 A.D.2d 649, 499 N.Y.S.2d 60 (1st Dept. 1986), the Court stated that "counters failure to present a more reasonable explanation is without prejudice." shinificance given...the City's failure to show substantial See Rochenberner v. NGBSauCounty Medical Cenlar. 1121 A.D.2d 153 (2d 150, Dept.1985). 11, The delay in filing the Notice of Claim, In this case did not substantiaBy prejudlon Respondent's ability to defend on the merits. See, Germl.suns. The Court in Garzel held: "The only legitimate purpose served by Secton 60(e) is to pmtect the public corporation against spurious chrims and to assure ft 'an adequate opportunity...to explore the merits of the claim avalable'." while Inkmathm is stRI readBy Teresta v. NEW YORK CITY HEALTH & HOSPITALS 998P., 304 N.Y.440, 108 N.E.2d 397 (1952); Gerzel v. NEW YORK CITY HEALTH & tiO.SPITALS-CORP..sup_[g The Courts have further held: "...Section 50(e) empowers the courts to evaluate requests br rolleI from the 90 day filing requirement by 4 of 7 .. FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020 h: NEN YORK COUIREY INDEX NO. 154065/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2020 airiking an 'equitable balans...between a public corporation's reasonable need for prompt notification of claims against it and an irajured party's interest in just compensaton'." Helman v. NEW YORK CITY_HEALT1L& floSPITALS CORP.. 65 A.D2d 25, 26 447 N.Y.S.2d 258 {tat Dept. 1982); Gerzel v. NEW YORK CITY HEALTH & tLO-SP-.ITAIAGEE. als g . 12. The within rration is made within one year and BD days after the date of the incident. See Torinrici v. East Rockaway Public School District No. 19 191 A.D2d 594 N.Y.S.2d 335(2d Afnbrpsano v. 495, Dept., 1993); (3d Canaloharle central School District 174 A.D2d 914, 571 N.Y.S.2d 612 Dept.,1991); Friedman v.. Svonset Central School District, 154 A.D.2d 337, (2" 646 N.Y.S.814 Dept, 1989). 13. it Is reapectfully submitted that a reasonable explanation for untimeBnees must be considered, together with all of the mlevant factors in deciding whether to grant 9te extension. In Elvono v. City of New York. 240 A.D2d 689 (2nd Dept. the Court stated: 1997), "although the excuse (endered hy Mr. Buono for a failum to serve a Notice of Claim within the prescrbed lime is tenuous, this factor alone does not wanant denial of the instant applica6on." 14. Similarly, la Relsse V. Cqµnty of Nassau. 141 A.D.2d 649, 529 N.Y.S.2d 371 (2d Dept. the Court stated that all relevant facts must ba 1988), considered despite the fact that athe reasonableness of the Petim debatable." excuse of the delay Is 15. The Court of Appeals held in Etagry y, City of Rya. 44 N.Y.2d 398, 406 N.Y.2d 9, 377 N E.2d 435 (1978), thal the standards of Sec. 50(e)(a) of 5 of 7 FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020 YORK COUNTY CLERK 06/18/2020 10:53 AN| mm NO. W065/2020 WYSCEF DOC. No. 3 RECEIVED NYSCEF: 06/1.8/2020 the General Municipal Law were modilled by the Legislature so that the grounds upon which a court may allow inte illing were expanded and the time within which an application ibr such relief can be made was lengthened. 16. The Court went on to say that the standards of Soc. 50(e) are far more classic. in substance, they equhe a court to consider not only the factors to which it was formerly limited, but other newly specilled ones, along circumstances." with "all other relevant facts and Moreover, In deciding whether to exercise lis discretton, the Courts atlantion is also focused upon whether the public corporation or those acting for it, acquired actual knowledge of the essential facts of the claim within the ninety-day period or a reasonable time themafter. See Nnael v. County of Suffolk. 92 AD.2d 545, (2d 459 N.Y.2d 1t2 Dept. 1983); Ansaldo v. Citvof New York. 92 .D.2d 557, N.Y.S.2d (2d 1983). 459 302 Dept 17. The delay in illing the Notice of Clairn, in this case did not substantiaRy prejudice Respondents ability to defend on the merits. 18. Hence, since there is no prejudice to the respondent, end clahnant brought this spplication expeditiously, this Honorable Cowt should grant the reAef sought herein. 19. Claimant would be prejudiced were this appilcation extremely denied, In that It would prevent her from bringing a mettlorious action as a result of the negBgence of the respondent "D" 21. Annexed hereto as Exhibit is an Affldavit of the Petitioner in further support of this application. 6 of 7 FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020 22. No prior application for the relief sought herein has been made. 23. It Is respectfully requested that an Order be granted herein pennitting the Notloe of Claim served upon.the respondent be deemed timely served nurtc pro tunc. WHEREFORE, it is respectfully .request=d that the instant Order to Show Cause be In all respects and for other and further granted, relief as to this court rnay seem just and proper. Dated: New York, NY June 5, 2020 ALISON R. KEENAN FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020 EXHIBIT A FILED: NEW YORK COUNTY CLERK 09/08/2020 11:42 PM INDEX NO. 154065/2020 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/08/2020 NOTICE OF CLAIM In the Matter of the Claim of SHERLEY PETWAY, p NEW YORK CITY HOUSING AUTHORITY. T TO: NEW YORK CITY HOUSING AUTHORITY, 250 Broadway, New York, New York 10007. PLEASE TAKE NOTICE, that the undersigned niaimant hereby makes claim and demand against NEW YORK CITY HOUSEWG AUTHORrry, its agencies, agents, servants and/or employees, as follows: 1. The name and address of the elaimant and claimeant's attorneys: SEERLEY PETWAY BURNS & HARRIS, ESQS. 70 MalcolmX Blvd., Apt 23 233 Broadway, Suite 900 New York, New York 10026 New York, New York 19279 (212)393-1000 2. Thenature of the claim: Personal