Trusso v. Board of Education of Jamestown City School District

24 A.D.3d 1302, 805 N.Y.S.2d 909

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 2005
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Chautauqua County (Frederick J. Marshall, J), entered September 16, 2004. The order granted claimant’s application for leave to serve a late notice of 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 claimant’s application for leave to serve a late notice of claim upon respondent (see Education Law § 3813 [2-a]; General Municipal Law § 50-e [5]; cf. Hale v Webster Cent. School Dist., 12 AD3d 1052 [2004]; Palumbo v City of Buffalo, 1 AD3d 1032 [2003]). The claim seeks damages from respondent for the alleged sexual harassment/abuse of claimant by an alleged employee of respondent. The alleged harassment/abuse occurred between April and December 2001, when claimant was 15 or 16 years of age, and claimant sought leave to serve a late notice of claim in July 2004. Claimant had attained the age of 18 years in September 2003.

The court properly concluded that claimant established a reasonable excuse for her delay in serving the notice of claim based upon her infancy at the time the notice of claim should have been served (see Matter of Andrew T.B. v Brewster Cent. School Dist., 18 AD3d 745, 747 [2005]; Matter of Sanna v Bethpage Pub. Schools Union Free School Dist. 21, 193 AD2d 606 [1993]; see also Matter of Mahan v Board of Educ. of Syracuse City School Dist., 269 AD2d 834 [2000]). The court further properly determined that respondent or its agents had actual knowledge of the essential facts constituting the claim no later than May 2003, which was within a reasonable time after accrual (see Education Law § 3813 [2-a]; General Municipal Law § 50-e [5]; see also More v General Brown Cent. School Dist., 262 AD2d 1030 [1999]). Further, the record demonstrates that respondent was not substantially prejudiced as a result of claimant’s delay in serving the notice of claim because it could have conducted a full investigation into the claim as of May 2003 (see Marchetti v East Rochester Cent. School Dist., 302 AD2d 930 [2003]; Matter of O’Connor v County of Erie, 259 AD2d 964 [1999]), although it evidently failed to do so. Present—Pigott, Jr., P.J., Green, Kehoe, Martoche and Pine, JJ.