| Matter of Wimberly v Southern Westchester BOCES (Board of Coop.Educ. Servs.) |
| 2008 NY Slip Op 04531 [51 AD3d 810] |
| May 13, 2008 |
| Appellate Division, Second Department |
| In the Matter of Brandon Wimberly et al.,Respondents, v Southern Westchester BOCES (Board of Cooperative EducationalServices), Appellant. |
—[*1] Wroby Groner Edelman LLP, White Plains, N.Y. (Michael L. Taub of counsel), forrespondents.
In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a latenotice of claim, Southern Westchester BOCES (Board of Cooperative Educational Services)appeals from an order of the Supreme Court, Westchester County (Tolbert, J.), entered July 31,2007, which granted the petition.
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 wheelchair bound, 17-year-old petitioner (hereinafter the injuredpetitioner), who has suffered from developmental disabilities from cerebral palsy since birth,allegedly sustained during physical therapy on November 21, 2005, in a program operated bySouthern Westchester BOCES (Board of Cooperative Educational Services) (hereinafterBOCES). This program was conducted in the Isaac Young Middle School in the City of NewRochelle School District (hereinafter the District).
On February 10, 2006, the petitioners' attorney timely served a notice of claim upon the [*2]District, the wrong entity, and thereafter commenced a personalinjury action against the District on behalf of the petitioners. On October 26, 2006, the Districtmoved to dismiss the complaint in the personal injury action on the ground that it was not aproper party to the action. On November 8, 2006, only 13 days after the District made its motion,and less than 11 months after the incident complained of, the petitioners commenced the instantproceeding for leave to serve a late notice of claim upon BOCES. The Supreme Court granted thepetition and we affirm.
An error in serving the wrong governmental entity with a notice of claim may be excused ifremedied promptly after discovery of the mistake (see Matter of McLean v Valley Stream Union Free School Dist. 30, 48AD3d 571 [2008]; Matter of Flynn v Town of Oyster Bay, 256 AD2d 341 [1998];Matter of Farrell v City of New York, 191 AD2d 698 [1993]).
In this case, the petitioners' attorney promptly commenced this proceeding after learning,through the District's motion in the personal injury action, that the wrong entity had been servedwith the notice of claim. Moreover, BOCES was on notice of the essential facts of the claimwithin 90 days of the claim or a reasonable time thereafter, as acknowledged by the admission ofBOCES director Neil Manis, described in the District's motion to dismiss the complaint in thepersonal injury action, that he was aware of that action and that the petitioners were claiming thatthe injured petitioner was pushed incorrectly in his wheelchair or that his body was mishandled(see Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138 [2008]).
As such, BOCES' claim of prejudice is unpersuasive (see Matter of March v Town of Wappinger, 29 AD3d 998 [2006];Gibbs v City of New York, 22AD3d 717 [2005]; Matter of Johnson v City of New York, 302 AD2d 463 [2003]).The petitioners demonstrated that, at the time this proceeding was commenced, witnesses to thealleged incident continued to be employed by BOCES. These witnesses were available forinvestigation and defense of the claim, which, in conjunction with the petitioners' proof that thedirector of BOCES had knowledge of the claim, satisfied the petitioners' initial burden of proofthat BOCES would not be prejudiced by the granting of the petition. BOCES has notcontradicted the assertion of lack of prejudice, except in general terms referring to the passage oftime, which is unavailing in this instance in light of our finding that it had timely knowledge ofthe essential facts constituting the claim.
Under the facts of this case, we cannot conclude that the Supreme Court improvidentlyexercised its discretion in granting the petition (see Matter of McLean v Valley Stream Union Free School Dist. 30, 48AD3d 571 [2008]; Matter of Felicev Eastport/South Manor Cent. School Dist., 50 AD3d 138 [2008]; Matter of Vasquez v City ofNewburgh, 35 AD3d 621 [2006]).
The parties' remaining contentions are without merit. Fisher, J.P., Covello, Angiolillo andBelen, JJ., concur.