MACIEJEWSKI, ALBERTA v. NORTH COLLINS CENTRAL SCHOOL DIST.

Opinion

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

1319 CA 14-01042 PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.

IN THE MATTER OF ALBERTA MACIEJEWSKI AND HENRY MACIEJEWSKI, AS PARENTS AND NATURAL GUARDIANS OF SELENA MACIEJEWSKI, AN INFANT UNDER THE AGE OF 14 YEARS, CLAIMANTS-RESPONDENTS,

V MEMORANDUM AND ORDER

NORTH COLLINS CENTRAL SCHOOL DISTRICT, RESPONDENT-APPELLANT.

HURWITZ & FINE, P.C., BUFFALO, CONGDON, FLAHERTY, O’CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER, UNIONDALE (CHRISTINE GASSER OF COUNSEL), FOR RESPONDENT-APPELLANT.

FARRELL & FARRELL, HAMBURG (KENNETH J. FARRELL OF COUNSEL), FOR CLAIMANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (James H.

Dillon, J.), entered February 24, 2014. The order granted the application of claimants 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: Supreme Court did not abuse its discretion in granting claimants’ application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5). “[C]laimant[s] 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” (Matter of Hall v Madison- Oneida County Bd. of Coop. Educ. Servs., 66 AD3d 1434, 1435 [internal quotation marks omitted]). Further, inasmuch as “actual notice was had and there is no compelling showing of prejudice to respondent[],” claimants’ failure to offer a reasonable excuse for the delay is not fatal to their application (Matter of Drozdzal v Rensselaer City Sch. Dist., 277 AD2d 645, 646; see Hall, 66 AD3d at 1435).

Entered: January 2, 2015 Frances E. Cafarell Clerk of the Court