Case Information
*1 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department 503
CA 14-01938
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ. AMY SHAUL, AS PARENT AND NATURAL GUARDIAN
OF ADDISON HERNQUIST, AN INFANT,
CLAIMANT-RESPONDENT,
V MEMORANDUM AND ORDER 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. 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.
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
-2- 503
CA 14-01938 Brockport , 88 AD3d 1288, 1288-1289).
Entered: May 1, 2015 Frances E. Cafarell
Clerk of the Court