Opinion
2015-05-01
Amy SHAUL, as Parent and Natural Guardian of Addison Hernquist, an Infant, Claimant–Respondent, v. 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.
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.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, and DeJOSEPH, JJ.
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 A.D.3d 790, 791, 980 N.Y.S.2d 132; Brown v. City of Buffalo, 100 A.D.3d 1439, 1440, 954 N.Y.S.2d 303), 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 A.D.3d 1246, 1246–1247, 951 N.Y.S.2d 439; see Matter of Maciejewski v. North Collins Cent. Sch. Dist., 124 A.D.3d 1347, 1348, 1 N.Y.S.3d 654). 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 A.D.3d 1434, 1435, 885 N.Y.S.2d 690 [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 N.Y.3d 175, 179, 785 N.Y.S.2d 369, 818 N.E.2d 1110; see generally Terrigino v. Village of Brockport, 88 A.D.3d 1288, 1288–1289, 930 N.Y.S.2d 744).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.