Opinion
2012-10-5
Karen CASALE, as Parent and Natural Guardian of Stephanie Casale, an Infant, Claimant–Respondent, v. LIVERPOOL CENTRAL SCHOOL DISTRICT, Respondent–Appellant.
Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered January 26, 2012. The order granted the application of claimant for leave to serve a late notice of claim. Sugarman Law Firm, LLP, Syracuse (Jenna W. Klucsik of Counsel), for Respondent–Appellant. Kuehner Law Firm, PLLC, Syracuse (Brian D. Roy of Counsel), for Claimant–Respondent.
Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered January 26, 2012. The order granted the application of claimant for leave to serve a late notice of claim.
Sugarman Law Firm, LLP, Syracuse (Jenna W. Klucsik of Counsel), for Respondent–Appellant. Kuehner Law Firm, PLLC, Syracuse (Brian D. Roy of Counsel), for Claimant–Respondent.
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 a court may properly consider whether a claimant provided a reasonable excuse for failing to serve a timely notice of claim ( see Parton v. Onondaga County, 81 A.D.3d 1433, 1433–1434, 916 N.Y.S.2d 880), a claimant's failure to tender a reasonable excuse “is not fatal where ... actual notice was had and there is no compelling showing of prejudice to [respondent]” (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 Hale v. Webster Cent. School Dist., 12 A.D.3d 1052, 1053, 784 N.Y.S.2d 449). Here, claimant “made a persuasive showing that [respondent] ‘acquired 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” ( Wetzel Servs. Corp. v. Town of Amherst, 207 A.D.2d 965, 965, 616 N.Y.S.2d 832;see § 50–e [5] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.