Opinion
CA 03-00036
June 13, 2003.
Appeal from an order of Supreme Court, Erie County (Notaro, J.), entered September 17, 2002, which granted claimants' application seeking leave to serve a late notice of claim on respondents Eden Central School District and Eden Central School District Board of Education.
GOLDBERG SEGALLA LLP, BUFFALO (PATRICK B. NAYLON OF COUNSEL), FOR RESPONDENTS-APPELLANTS.
LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR CLAIMANTS-RESPONDENTS.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.
MEMORANDUM AND ORDER
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 claimants' application seeking leave to serve a late notice of claim on Eden Central School District and Eden Central School District Board of Education (respondents) pursuant to Education Law 3813 (2-a) ( see
General Municipal Law 50-e). Even assuming, arguendo, that claimants failed to provide a reasonable excuse for their delay, we conclude that their failure to do so "`is not fatal where, as here, actual notice was had and there is no compelling showing of prejudice' to respondent[s]" ( Matter of Blair v. County of Onondaga, 295 A.D.2d 933, 934; see Marchetti v. East Rochester Cent. School Dist., 302 A.D.2d 930; Nationwide Ins. Co. v. Village of Alexandria Bay, 299 A.D.2d 855).
Claimants established that the motor vehicle accident underlying their claim involved respondents' employees, one of whom provided medical assistance to Kenneth C. Gilbert (claimant) at the scene. Upon arriving at the scene, other employees of respondents observed the damage to the vehicles and were aware that claimant was transported from the scene by ambulance. Additionally, respondents were aware that claimant filed a worker's compensation claim when claimant's employer sought subrogation for that claim from respondents. The insurance company insuring the vehicle operated by claimant also filed a property damage claim against respondents before the expiration of the three-month period in which to serve a notice of claim pursuant to Education Law 3813(1). Respondents investigated the accident, although only in terms of property damage at that time. Thus, respondents were aware of the essential facts constituting the claim within the statutory time period ( see e.g. Matter of Continental Ins. Co. v. City of Rye, 257 A.D.2d 573; Matter of McAdams v. Police Dept. of Town of Clarkstown, 184 A.D.2d 847; Plass v. Town of Poughkeepsie, 102 A.D.2d 819). There was a connection between the injuries and the alleged negligence of respondents, and respondents were aware of that connection ( cf. Rabanar v. City of Yonkers, 290 A.D.2d 428, 429).
Respondents failed to substantiate their conclusory assertions that they were substantially prejudiced by the approximately two-month delay in serving the notice of claim ( see Matter of Bollerman v. New York City School Constr. Auth., 247 A.D.2d 469, 470; Matter of Alvarenga v. Finlay, 225 A.D.2d 617). There is no evidence in the record that the witnesses who were not interviewed at the time of the accident are presently unavailable or that those witnesses are now unable to recall the events ( see Matter of Mahan v. Board of Educ. of Syracuse City School Dist., 269 A.D.2d 834, 835).