CASALE, KAREN v. LIVERPOOL CENTRAL SCHOOL DISTRICT

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 2012
• Docket: CA 12-00515
• Status: Published

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

985 CA 12-00515 PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.

KAREN CASALE, AS PARENT AND NATURAL GUARDIAN OF STEPHANIE CASALE, AN INFANT, CLAIMANT-RESPONDENT,

V MEMORANDUM AND ORDER

LIVERPOOL CENTRAL SCHOOL DISTRICT, RESPONDENT-APPELLANT.

SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR RESPONDENT-APPELLANT.

KUEHNER LAW FIRM, PLLC, SYRACUSE (BRIAN D. ROY OF COUNSEL), FOR CLAIMANT-RESPONDENT.

Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered January 26, 2012. The order granted the application of claimant for leave to serve a late notice of claim.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Contrary to respondent’s contention, Supreme Court did not abuse its discretion in granting claimant’s application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5). Although a court may properly consider whether a claimant provided a reasonable excuse for failing to serve a timely notice of claim (see Parton v Onondaga County, 81 AD3d 1433, 1433- 1434), a claimant’s failure to tender a reasonable excuse “is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respondent]” (Matter of Hall v Madison-Oneida County Bd. of Coop. Educ. Servs., 66 AD3d 1434, 1435 [internal quotation marks omitted]; see Hale v Webster Cent. School Dist., 12 AD3d 1052, 1053). Here, claimant “made a persuasive showing that [respondent] ‘acquired actual knowledge of the essential facts constituting the claim’ . . . [and respondent has] made no particularized or persuasive showing that the delay caused [it] substantial prejudice” (Wetzel Servs. Corp. v Town of Amherst, 207 AD2d 965, 965; see § 50-e [5]).

Entered: October 5, 2012 Frances E. Cafarell Clerk of the Court