O'Connor v. Mexico Academy & Central School District

210 A.D.2d 917, 620 N.Y.S.2d 664, 1994 N.Y. App. Div. LEXIS 13387

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1994
• Status: Published

Opinion

—Order unanimously reversed on the law without costs and application denied. Memorandum: Claimant is an apprentice roofer who was employed by Diamond Roofing Co., Inc., the roofing contractor retained to remove and replace the roof at the elementary school of the Mexico Academy and Central School District (School District). Claimant alleges that, on July 15, 1992, while he was attempting to lift a filled wheelbarrow, he slipped and fell, injuring his back. On or about January 18, 1993, claimant applied for leave to file a late notice of claim against the School District to assert causes of action alleging violations of the Labor Law. Supreme Court granted the application. That was an abuse of discretion.

Education Law § 3813 (2-a) authorizes a court, in its discretion, to permit the late filing of a notice of claim against a school district. Here, however, claimant failed to demonstrate that the School District had actual knowledge of the essential facts constituting the claim and failed to proffer a reasonable excuse for the delay (see, Rodriguez v New York City Bd. of Educ., 190 AD2d 579, lv dismissed 81 NY2d 1041; cf., Frazier v Board of Educ., 209 AD2d 1044). Additionally, the delay and lack of knowledge prejudiced the School District because it was deprived of an opportunity to investigate the alleged accident that constitutes the basis of the claim. (Appeal from Order of Supreme Court, Oswego County, Hayes, J.—Late Notice of Claim.) Present—Balio, J. P., Lawton, Wesley, Callahan and Davis, JJ.