In re McKithen

221 A.D.2d 1019, 634 N.Y.S.2d 580, 1995 N.Y. App. Div. LEXIS 13565

Opinion

—Order unanimously reversed on the law without costs and application granted. Memorandum: Supreme Court erred in denying the application of petitioner for leave to file a late notice of claim on behalf of her infant son against the County of Erie. The Erie County Department of Social Services had custody of the child at all relevant times herein and had placed him, along with his siblings, with foster parents. According to the proposed notice of claim, the two-year-old child was injured while at a day-care center where the foster parents had placed him. The child was confined to the hospital for two months and was placed in a body cast from the chest down. After the incident, the County immediately removed the children from the foster parents’ residence and placed them in another home.

The County failed to establish that it would be prejudiced if leave to file the late notice of claim were granted. The proposed notice of claim sets forth the pertinent allegations, including the nature of the claim and the manner in which it arose. We conclude that, under the particular circumstances of this case, the court abused its discretion by denying the application (see, Maurice W. v Onondaga County Dept, of Social Servs., 186 AD2d 986). (Appeal from Order of Supreme Court, Erie County, Howe, J.—Late Notice of Claim.) Present—Green, J. P., Law-ton, Fallon, Doerr and Balio, JJ.