Day v. Greenburgh Eleven Union Free School District

88 A.D.3d 877, 931 N.Y.2d 513

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2011
• Status: Published

Opinion

The appellant contends that leave to serve a late notice of claim should have been denied because the claim is patently without merit. While the merits of a claim ordinarily are not considered on a motion for leave to serve a late notice of claim, leave should be denied where the proposed claim is patently without merit (see Matter of Catherine G. v County of Essex, 3 NY3d 175, 179 [2004]; Matter of Gaeta v Incorporated Vil. of Garden City, 72 AD3d 683, 684 [2010]; Matter of Chambers v Nassau County Health Care Corp., 50 AD3d 1134, 1135 [2008]). In opposition to the petition, the appellant failed to demonstrate at this stage of the proceedings that the underlying claim was patently without merit (see Matter of Billman v Town of Deerpark, 73 AD3d 1039, 1040 [2010]; Burke v Incorporated Vil. of Hempstead, 156 AD2d 630, 631 [1989]). Accordingly, upon re-argument, the Supreme Court properly rejected the appellant’s contention and adhered to its original determination granting the petition (see CPLR 2221 [d]). Dillon, J.P., Dickerson, Leventhal, Austin and Miller, JJ., concur.