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In re Allstate Insurance Co.

Supreme Court of New York, Second Department

October 2, 2013

In the Matter of Allstate Insurance Company, etc., appellant,
v.
Washingtonville Central School District, respondent. Index No. 2751/12

Robert G. Mazeau, New York, N.Y. (Lisa G. Kim of counsel), for appellant.

LaRose & LaRose, Poughkeepsie, N.Y. (Keith V. LaRose of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ.

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Orange County (Bartlett, J.), dated June 5, 2012, which denied the petition.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the petition is granted.

In determining whether to grant an application for leave to serve a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the public corporation or its attorney or insurance carrier acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits (see Education Law § 3813[2-a]; General Municipal Law § 50-e[5]; Platt v New York City Health & Hosps. Corp., 105 A.D.3d 1026, 1027; Matter of McLeod v City of New York, 105 A.D.3d 744; Matter of Billman v Town of Deerpark, 73 A.D.3d 1039).

Here, the respondent acquired actual knowledge of the essential facts underlying the petitioner's claim within 90 days after the accident from the petitioner's letters dated May 18, 2011, and June 17, 2011, respectively, and supporting documentation. Moreover, the petitioner met its initial burden of demonstrating a lack of substantial prejudice to the respondent should service of the late notice of claim be allowed (see Kim L. v Port Jervis City School Dist., 77 A.D.3d 627, 629-630; Matter of Leeds v Port Wash. Union Free School Dist., 55 A.D.3d 734, 735-736; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 152). In response, the respondent's contentions were insufficient to overcome the petitioner's showing of a lack of substantial prejudice (see Matter of Lavender v Garden City Union Free School Dist., 93 A.D.3d 670, 671). The absence of a reasonable excuse for the delay does not bar the granting of leave to serve a late notice of claim where, as here, there is actual knowledge and an absence of prejudice (see id.; Matter of Leeds v Port Wash. Union Free School Dist., 55 A.D.3d at 736).

Accordingly, the petition should have been granted.

DILLON, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.


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