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Hall v. Madison-Oneida County Board of Cooperative Educational Services

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


October 2, 2009

IN THE MATTER OF DAVID HALL, CLAIMANT-RESPONDENT,
v.
MADISON-ONEIDA COUNTY BOARD OF COOPERATIVE EDUCATIONAL SERVICES, ALSO KNOWN AS MADISON-ONEIDA COUNTY BOCES, RESPONDENT-APPELLANT. (APPEAL NO. 1.)

Appeal from an order of the Supreme Court, Oneida County (Samuel D. Hester, J.), entered June 16, 2008. The order granted claimant's application for leave to serve a late notice of claim.

PRESENT: HURLBUTT, J.P., FAHEY, PERADOTTO, GREEN, AND PINE, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum

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). "The court is vested with broad discretion to grant or deny [such an] application" (Wetzel Servs. Corp. v Town of Amherst, 207 AD2d 965) and, although claimant failed to offer a reasonable excuse for his failure to serve the notice of claim within the statutory 90-day period (see § 50-e [1] [a]), that failure " 'is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respondent]' " (Hale v Webster Cent. School Dist., 12 AD3d 1052, 1053; see Matter of LaMay v County of Oswego, 49 AD3d 1351, 1352, lv denied 10 NY3d 715). 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., 207 AD2d 965).

20091002

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