| Joyce P. v City of Buffalo |
| 2008 NY Slip Op 02349 [49 AD3d 1268] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| Joyce P., Appellant, v City of Buffalo et al.,Respondents. |
—[*1] Alisa A. Lukasiewicz, Corporation Counsel, Buffalo (Carmen J. Gentile of counsel), forrespondents-respondents.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), enteredJanuary 4, 2007. The order denied the application of claimant for leave to serve a late notice ofclaim.
It is hereby ordered that the order so appealed from is unanimously reversed in the exerciseof discretion without costs and the application is granted upon condition that the proposed noticeof claim is served within 20 days of the date of entry of the order of this Court.
Memorandum: Supreme Court improvidently exercised its discretion in denying claimant'sapplication for leave to serve a late notice of claim. Although claimant " 'fail[ed] to offer areasonable excuse for the delay in [serving] a notice of claim, [such delay] is not fatal where, ashere, actual notice was had and there is no compelling showing of prejudice to [the respondents]'" (Hale v Webster Cent. SchoolDist., 12 AD3d 1052, 1053 [2004]; see Matter of Gilbert v Eden Cent. SchoolDist., 306 AD2d 925, 926 [2003]; see generally Matter of Henderson v Town of VanBuren, 281 AD2d 872, 873 [2001]). Claimant alleged in support of her application that shewas sexually assaulted by respondent Greg O'Shei, a police officer employed by respondentBuffalo Police Department (Police Department), and that the last sexual assault occurred inFebruary 2006. Claimant reported the sexual assaults to the Police Department on August 28,2006, and respondents made no showing that they were substantially prejudiced by the delay(see Gilbert, 306 AD2d at 926-927). Present—Martoche, J.P., Lunn, Fahey,Peradotto and Pine, JJ.