| Matter of McLean v Valley Stream Union Free School Dist.30 |
| 2008 NY Slip Op 01351 [48 AD3d 571] |
| February 13, 2008 |
| Appellate Division, Second Department |
| In the Matter of Leanza McLean et al.,Respondents, v Valley Stream Union Free School District 30, Appellant, et al.,Respondent. |
—[*1] Lawrence A. Salvato, New York, N.Y., for petitioners-respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5), for leave to serve a latenotice of claim, Valley Stream Union Free School District 30 appeals from an order of theSupreme Court, Nassau County (Robbins, J.), dated October 25, 2006, which granted thepetition.
Ordered that the order is affirmed, with costs.
The petitioners commenced this proceeding for leave to serve a late notice of claim inconnection with injuries that the infant petitioner allegedly sustained as the result of an accidentin her gym class on January 23, 2006 when she fell off a balance beam. The infant petitionerwent to the nurse's office after the fall, and on the following day her mother called the school andspoke to staff members about the accident and the infant petitioner's injuries, and a studentincident report was prepared. The petitioners' attorney sent a claim letter dated February 21, 2006to the school advising that the attorney represented the infant petitioner "for injuries sustained" atthe school.
On March 28, 2006 the petitioners' attorney timely served a notice of claim upon the wrongmunicipal entity. The instant proceeding for leave to serve a late notice of claim upon the ValleyStream Union Free School District 30 (hereinafter the school district) was commenced by orderto show cause dated June 26, 2006. The Supreme Court granted the petition and the schooldistrict [*2]appeals. We affirm.
"The determination of an application for leave to serve a late notice of claim is left to thesound discretion of the court" (Matter ofVasquez v City of Newburgh, 35 AD3d 621, 623 [2006]). Various factors are to beconsidered on an application for leave to serve a late notice of claim, including (1) whether theclaimant is an infant, (2) whether the movant has demonstrated a reasonable excuse for failing toserve a timely notice of claim, (3) whether the public corporation acquired actual notice of thefacts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4)whether the delay would substantially prejudice the public corporation in defending on the merits(see General Municipal Law § 50-e [5]; Williams v Nassau County Med. Ctr., 13 AD3d 363, 364 [2004]affd 6 NY3d 531 [2006]).
An error in serving the wrong governmental entity with a notice of claim may be excused ifremedied promptly after discovery of the mistake (see Bovich v East Meadow Pub. Lib., 16 AD3d 11 [2005];Matter of Flynn v Town of Oyster Bay, 256 AD2d 341 [1998]; Matter of Farrell vCity of New York, 191 AD2d 698 [1993]). In this case the petitioners' attorney promptlycommenced this proceeding after recognizing that the wrong entity had been served. Moreover,the school district was on notice of the essential facts of the claim based upon the studentincident report prepared the day after the accident, which indicated that other students wereassisting (i.e., supervising) the activity, and the mother's immediate interaction with schoolofficials (cf. Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d138 [2008]). The school district was also onnotice that the infant petitioner intended to make a claim for the injuries she sustained, onemonth after the accident, by virtue of the letter her attorney sent to the school (see Matter of March v Town of Wappinger,29 AD3d 998 [2006]). Finally, the school district's claim of prejudice is unpersuasive(see Matter of Sanna v Bethpage Pub. Schools Union Free School Dist. 21, 193 AD2d606 [1993]). Under the particular facts of this case we cannot conclude that the Supreme Courtimprovidently exercised its discretion in granting the petition based on its finding that the schooldistrict had notice of the claim and in granting the petition (see Matter of Finneran v City ofNew York, 228 AD2d 596 [1996]). Fisher, J.P., Lifson, Covello and McCarthy, JJ., concur.