Sanna v. Bethpage Public Schools Union Free School District 21

193 A.D.2d 606, 597 N.Y.S.2d 430, 1993 N.Y. App. Div. LEXIS 4554

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1993
• Status: Published

Opinion

In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a late notice of claim, the Bethpage Public Schools Union Free School District 21 appeals from an order of the Supreme Court, Nassau County (McCaffrey, J.), dated March 21, 1991, which granted the petitioner’s application for leave to serve a late notice of claim.

Ordered that the order is affirmed, without costs or disbursements.

When determining an application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5), a court has broad discretion to consider all relevant factors (see, Matter of Beary v City of Rye, 44 NY2d 398; Fox v City of New York, 91 AD2d 624). Although ignorance of the need to serve a timely notice of claim will not generally excuse a failure to do so (see, Washington v City of New York, 72 NY2d 881; Matter of Mallory v City of New York, 135 AD2d 636), where, as here, the failure to serve a notice of claim in a timely fashion is related to the infancy of the petitioner, it may constitute an acceptable excuse (see, Matter of Kurz v New York City Health & Hosps. Corp., 174 AD2d 671; Matter of Groshans v Town of Babylon, 143 AD2d 666).

In this case, the petitioner commenced the instant proceeding for leave to serve a late notice of claim within the statutory one-year 90-day period during which the court had discretion to grant the application, without reference to the available toll for the petitioner’s infancy (see, CPLR 208; see, Matter of Kurz v New York City Health & Hosps. Corp., supra). The appellant school district received timely actual notice of some of the facts underlying the petitioner’s claim and has not demonstrated the validity of its claim of prejudice. Accordingly, we find that the court properly exercised its discretion to permit the petitioner to serve a late notice of claim. Bracken, J. P., Miller, O’Brien and Pizzuto, JJ., concur.