We agree with Special Term that plaintiff, on his original application for leave to file a late notice of claim, failed to offer a satisfactory explanation for his tardiness. Thus, the motion was properly denied. On the application for renewal, however, plaintiff demonstrated a physical incapacitation sufficient to excuse the delay. Special Term, in its discretion, should have considered this evidence. The delay was only 22 days beyond the statutory 90 days. The stairway defect of which plaintiff complains is a static condition. Defendant is unable to show prejudice. The injuries appear to be serious. In such circumstances, the motion, on renewal, should have been granted.
Concur — Sullivan, J.P., Ross, Asch, Kassal and Ellerin, JJ.