SHAUL, AMY v. HAMBURG CENTRAL SCHOOL DISTRICT

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 2015
• Docket: CA 14-01938
• Status: Published

Opinion

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

503 CA 14-01938 PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.

AMY SHAUL, AS PARENT AND NATURAL GUARDIAN OF ADDISON HERNQUIST, AN INFANT, CLAIMANT-RESPONDENT,

V MEMORANDUM AND ORDER

HAMBURG CENTRAL SCHOOL DISTRICT, RESPONDENT-APPELLANT.

HURWITZ & FINE, P.C., BUFFALO (KINSEY A. O’BRIEN OF COUNSEL), FOR RESPONDENT-APPELLANT.

VIOLA, CUMMINGS & LINDSAY, LLP, NIAGARA FALLS (MATTHEW T. MOSHER OF COUNSEL), FOR CLAIMANT-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (Shirley Troutman, J.), entered July 14, 2014. The order granted the application of claimant 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: Contrary to respondent’s contention, Supreme Court did not abuse its discretion in granting claimant’s application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5). Although claimant failed to demonstrate a reasonable excuse for failing to serve a timely notice of claim (see Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d 790, 791; Brown v City of Buffalo, 100 AD3d 1439, 1440), that failure “ ‘is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respondent]’ ” (Casale v Liverpool Cent. Sch. Dist., 99 AD3d 1246, 1246-1247; see Matter of Maciejewski v North Collins Cent. Sch. Dist., 124 AD3d 1347, 1348). Here, claimant “made a persuasive showing that [respondent] acquired [timely] 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]; see § 50-e [5]). In addition, contrary to respondent’s contention, we cannot conclude at this stage of the action that the claim is “patently meritless” (Matter of Catherine G. v County of Essex, 3 NY3d 175, 179; see generally Terrigino v Village of -2- 503 CA 14-01938

Brockport, 88 AD3d 1288, 1288-1289).

Entered: May 1, 2015 Frances E. Cafarell Clerk of the Court