Marchetti v. East Rochester Central School District

302 A.D.2d 930, 754 N.Y.S.2d 489, 2003 N.Y. App. Div. LEXIS 906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2003
• Status: Published

Opinion

Appeal from that part of an order of Supreme Court, Monroe County (Galloway, J.), entered June 26, 2Q02, that granted that part of plaintiff’s application seeking leave to serve a late notice of claim with respect to plaintiffs individual claim.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court did not abuse its discretion in granting that part of the application of plaintiff mother seeking leave to serve a late notice of claim with respect to her individual claim. Contrary to defendant’s contention, the court was entitled to consider the understandable preoccupation of this single mother with caring for the infant plaintiff, who is in a permanent semi-comatose condition, while maintaining her job and dealing with her father’s terminal illness (see Coonradt v Averill Park Cent. School Dist., 75 AD2d 925, 926; cf. Matter of Drozdzal v Rensselaer City School Dist., 277 AD2d 645, 646; Lavoie v Town of Ellenburg, 78 AD2d 714, 715, lv denied 53 NY2d 602). In any event, we note that it is undisputed that the accident was fully investigated by defendant and the police and that defendant has not been substantially prejudiced by the delay. Thus, even if plaintiff mother had offered no excuse for her delay in serving her notice of claim, that failure would not have been fatal to the application (see Nationwide Ins. Co. v Village of Alexandria Bay, 299 AD2d 855; Matter of Blair v County of Ontario, 295 AD2d 933, 933-934). Present — Pine, J.P., Wisner, Kehoe, Burns and Gorski, JJ.