Shaul v Hamburg Cent. Sch. Dist.

Shaul v Hamburg Cent. Sch. Dist. 2015 NY Slip Op 03682 Decided on May 1, 2015 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 1, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
503 CA 14-01938

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

v

HAMBURG CENTRAL SCHOOL DISTRICT, RESPONDENT-APPELLANT.

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.

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.

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

Brockport, 88 AD3d 1288, 1288-1289).

Entered: May 1, 2015

Frances E. Cafarell

Clerk of the Court