| Matter of Hinton v New Paltz Cent. School Dist. |
| 2008 NY Slip Op 03539 [50 AD3d 1414] |
| April 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Carol Hinton, Individually and as Parent andGuardian of Michael Hinton, Also Known as Michael Foreman, an Infant, Respondent, v NewPaltz Central School District, Respondent, and Ulster County Board of Cooperative EducationServices, Appellant. |
—[*1] Jacob D. Fuchsberg Law Firm, New York City (Keith H. Gross of counsel), for CarolHinton, respondent.
Cardona, P.J. Appeal from an order of the Supreme Court (Lynch, J.), entered October 24,2006 in [*2]Ulster County, which, among other things, grantedpetitioner's application for leave to file a late notice of claim.
Petitioner alleged that, in December 2001, her then 12-year-old son, a student in respondentNew Paltz Central School District, was sexually assaulted by a fellow student while riding on aschool bus operated by respondent Ulster County Board of Cooperative Education Services(hereinafter BOCES). In April 2006, petitioner, on her own behalf and as parent and guardian ofher son, sought leave to file a late notice of claim against respondents. Supreme Court grantedpetitioner's application only to the extent of allowing her, in her capacity as parent and guardian,to file a late notice of claim solely against BOCES. This appeal by BOCES ensued.
Supreme Court, in its discretion, may grant leave to file a late notice of claim (seeGeneral Municipal Law § 50-e [5]; Education Law § 3813 [2-a]). Such anapplication must be made prior to the expiration of the one year and 90-day statute of limitations(see General Municipal Law § 50-e [5]; § 50-i [1] [c]), however, when "theputative plaintiff is an infant, the statute of limitations is tolled until his or her 18th birthday"(Matter of Lanphere v County of Washington, 301 AD2d 936, 937 [2003]). Indetermining whether to grant such an application, the court must consider certain factors,including whether the respondent had actual knowledge of the essential facts of the claim within90 days after the claim arose or within a reasonable time thereafter, whether the respondentwould be substantially prejudiced in its defense of the claim by the delay and whether thepetitioner demonstrated a reasonable excuse for the delay (see id.). " 'Absent an abuse ofdiscretion, Supreme Court's determination of an application to file a late notice of claim will notbe disturbed' " (Matter of Welch v Board of Educ. of Saratoga Cent. School Dist., 287AD2d 761, 762 [2001], quoting Matter of Jensen v City of Saratoga Springs, 203 AD2d863, 863 [1994]).
Here, the application was timely made in reference to the child's claims. Further, our reviewof the record reveals that BOCES had actual knowledge of the essential facts of the claim no laterthan April 10, 2002, thus supporting Supreme Court's determination that BOCES was awarewithin a reasonable time of the incident's alleged occurrence in December 2001[FN*](see Matter of Drozdzal v Rensselaer City School Dist., 277 AD2d 645, 646 [2000]).Although BOCES claims to be prejudiced by the delay, we note that it has not presented specificevidence that it cannot adequately defend the claim (see Matter of Lanphere v County ofWashington, 301 AD2d at 939; Matter of Welch v Board of Educ. of Saratoga Cent.School Dist., 287 AD2d at [*3]764). Finally, while petitionerdid not establish a nexus between the delay and the child's infancy, as BOCES had actual noticeof the essential facts and has not shown prejudice by the delay, such a failure to show areasonable excuse for the delay is not fatal to the application (see Matter of Apgar v Waverly Cent. School Dist., 36 AD3d 1113,1115 [2007]; Matter of Lanphere v County of Washington, 301 AD2d at 938; Matterof Scuteri v Watkins Glen Cent. School Dist., 261 AD2d 779, 780 [1999]). Accordingly, weconclude that there was no abuse of discretion by Supreme Court.
Spain, Carpinello, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: We note that although petitionerindicates in her brief that she is contemplating a motion to amend the notice of claim to changethe alleged date of the incident to "sometime in March or April of 2002," our decision is basedonly upon the record that was before Supreme Court.