Upon the foregoing papers, the cross motion (No. 3542) of defendant NEW YORK CITY HOUSING AUTHORITY (hereinafter NYCHA) to dismiss the complaint for failure to file a timely Notice of Claim is granted to the limited extent that the causes of action asserted on behalf of TERESA KEHOE, the mother of the infant plaintiff, are severed and dismissed; the balance of the motion is denied. Plaintiffs' cross motion (No. 669) for leave to file a late Notice of Claim is granted.^[FN1]

Plaintiffs commenced this action to recover damages for injuries allegedly sustained by the infant plaintiff PATRICIA KEHOE on March 4, 2005, when she fell from a second-story window in a building located at 162 Arlington Place in Staten Island. Plaintiffs allege that there were no window guards in place on the window from which the infant fell. The claims of TERESA KEHOE, the infant's mother, are purely derivative in nature. A Notice of Claim was purportedly served upon the defendant NYCHA on December 9, 2005. The action was commenced on or about March 1, 2006.

In moving to dismiss the complaint against it, the NYCHA contends that plaintiffs' failure to timely serve a notice of claim prior to commencing the subject action renders the complaint legally insufficient under the General Municipal Law. According to the NYCHA, plaintiffs were required to serve a notice of claim within 90 days from the date of the accident, which concededly did not occur. [*2]

In opposition to the NYCHA's motion to dismiss and in support of their cross motion for leave to file a Notice of Claim, plaintiffs contend that since the infant plaintiff, PATRICIA KEHOE, was only nine years old at the time of the occurrence, CPLR 208 tolls the statute of limitations.

Hence, the 90-day filing requirement for a notice of claim under the General Municipal Law is extended until 90 days after her eighteenth birthday. Plaintiffs further contend that they did not seek legal counsel until after the 90-day filing period had expired, which resulted in the late filing of a Notice of Claim in December 2005. Finally, plaintiffs contend that the NYCHA has not been prejudiced, since all the known witnesses to the accident are still available.

For his part, the apparent owner of the building, KA SHUEN YUEN, contends that his cross claims against the NYCHA remain viable regardless of whether the Court dismisses the complaint against the NYCHA based on the untimely service of a notice of claim.

Service of a notice of claim is governed by the provisions of General Municipal Law §50-e, which provides for service upon the municipal authority within 90 days after the cause of action accrues. The court, however, may exercise its discretion to extend this time to any period within "one year and ninety days" of the occurrence (General Obligations Law §50-i[1][c]), plus any applicable tolls or extensions. In the exercise of this discretion, the court is enjoined to consider, inter alia, the reason for the delay, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within the ninety-day period or within a reasonable time thereafter, infancy, and whether the delay in filing substantially prejudiced the public corporation in maintaining its defense on the merits (see General Municipal Law §50-e[5]; Cotten v. County of Nassau, 307 AD2d 965).

Here, it is the opinion of this Court that leave to file a late notice of claim should be granted as to the infant plaintiff, and otherwise denied. The infant plaintiff was only nine years old at the time of her fall from the second story window, and appears to have been seriously injured. Although infancy per se is not an adequate excuse for a delay in filing (id. at 476), (1) the statute of limitations has yet to expire in this case (see CPLR 208), (2) the six-month delay in filing was not great, (3) the claimant's mother was likely overwhelmed by the need to care for the injured child as well as the other four young children allegedly committed to her care, and (4) the presence or absence of a window guard is a discrete fact as to which the memories of witnesses to such a tragic event are not likely to fade. In any event, the NCYHA has failed to establish actual prejudice. In this regard, it should be noted that General Municipal Law §50-e was not meant to be used as a sword to fell honest claimants, but as a shield to protect municipalities against spurious ones (see Schwartz v. City of New York, 250 NY 332). Viewed in this light, the infant plaintiff should be granted leave to file a late notice of claim in this case.

Nevertheless, no such relief is available to the infant's mother, and her claims against NYCHA must be severed and dismissed (see General Municipal Law §50-i[1][c]).. [*3]

Accordingly, it is

ORDERED that the cross motion of defendant NEW YORK CITY HOUSING AUTHORITY to dismiss the complaint as against it is granted to the extent of dismissing those causes of action asserted on behalf of the plaintiff mother TERESA KEHOE; and it is further

ORDERED that said causes of action are hereby severed and dismissed; and it is further

ORDERED that the balance of defendant's cross motion is denied; and it is further

ORDERED that plaintiffs' cross motion for leave to file a late notice of claim is granted as to the infant plaintiff PATRICIA KEHOE; and it is further

ORDERED that said notice of claim is deemed served; and it is further

ORDERED that the balance of plaintiffs' cross motion is denied; and it is further

ORDERED that the Clerk enter judgment accordingly.

The foregoing constitutes the Decision and Order of the Court.

Law Clerk to notify all parties of this Decision/Order.

Dated: SEPT. 14, 2007/s/

HON. THOMAS P. ALIOTTA, J.S.C.

ALL PARTIES NOTIFIED BY EVE/pt ON 9/27/07 [*4]

MINCHEW, SANTNER & BRENNER

1741 VICTORY BOULEVARD

STATEN ISLAND, NY 10314

MICHAEL A. CARDOZO

CORPORATION COUNSEL OF THE

CITY OF NEW YORK

60 BAY STREET, 9TH FL.

STATEN ISLAND, NY 10301

HERZFELD & RUBIN, P.C.

40 WALL STREET

NEW YORK, NY 10005-2349

PENINO & MOYNIHAN, LLP

180 EAST POST ROAD, STE 300

WHITE PLAINS, NY 10601