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Karen Casale, As Parent and Natural Guardian of Stephanie Casale, An Infant v. Liverpool Central School District

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


October 5, 2012

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.

Casale v Liverpool Cent. Sch. Dist.

Decided on October 5, 2012

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.

PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.

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 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 AD3d 1433, 1433-1434), 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 AD3d 1434, 1435 [internal quotation marks omitted]; see Hale v Webster Cent. School Dist., 12 AD3d 1052, 1053). 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 AD2d 965, 965; see § 50-e [5]).

Entered: October 5, 2012

Frances E. Cafarell Clerk of the Court

20121005

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