CRUZ v. CITY OF YONKERS

ORDERED that the order is affirmed insofar as appealed from, with costs.

The five-year-old infant plaintiff was allegedly abused at school by a sixth-grade student in January or February 1995. It was not discovered by the infant's mother until he disclosed it on March 13, 1995. She promptly reported it to school authorities and the Yonkers Police Department on March 15, 1995. On June 9, 1995, the plaintiffs served a notice of claim upon the defendants. The defendants moved to dismiss the complaint for failure to serve a timely notice of claim and the plaintiffs cross-moved for leave to serve a late notice of claim.

Contrary to the defendants' contention, the Supreme Court providently exercised its discretion in granting the infant plaintiff leave to serve a late notice of claim (see,General Municipal Law § 50-e[5]). In granting leave, the Supreme Court properly factored in the age of the infant plaintiff, the physical threats made to him by the alleged perpetrator, and the lack of substantial prejudice to the defendants due to their actual knowledge of the essential elements of the incident shortly after its alleged occurrence (see, Matter of Presley v. City of New York, 254 A.D.2d 490 ). Accordingly, the Supreme Court order is affirmed.

MANGANO, P.J., RITTER, JOY, McGINITY, and SMITH, JJ., concur.