| Matter of Funkhouser v Middle Country Cent. Sch.Dist. |
| 2013 NY Slip Op 00087 [102 AD3d 689] |
| January 9, 2013 |
| Appellate Division, Second Department |
| In the Matter of Sharon Funkhouser,Respondent, v Middle Country Central School District et al.,Appellants. |
—[*1] Law Offices of Vangeles N. Skartsiaris, PLLC, Commack, N.Y., forrespondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave toserve a late notice of claim, the Middle Country Central School District and MiddleCountry Central School District Board of Education appeal from an order of the SupremeCourt, Suffolk County (Pitts, J.), dated June 30, 2011, which granted the petition.
Ordered that the order is affirmed, with costs.
In determining whether to permit service of a late notice of claim, the court mustconsider all relevant facts and circumstances, including whether (1) the publiccorporation (or its attorney or insurance carrier) acquired actual knowledge of theessential facts constituting the claim within 90 days of the incident or a reasonable timethereafter, (2) the claimant was an infant at the time the claim arose and, if so, whetherthere was a nexus between the claimant's infancy and the delay in service of a notice ofclaim, (3) the claimant had a reasonable excuse for the delay, and (4) the publiccorporation was prejudiced by the delay in its ability to maintain its defense on the merits(see General Municipal Law § 50-e [5]; Matter of Avalos v City of N.Y.Bd. of Educ., 67 AD3d 675, 675-675 [2009]; Matter of Formisano v EastchesterUnion Free School Dist., 59 AD3d 543, 544 [2009]; Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138, 147-153 [2008]).
Under the circumstances of this case, the Supreme Court did not improvidentlyexercise its discretion in granting the petition for leave to serve a late notice of claim.The petitioners demonstrated that the Middle Country Central School District and MiddleCountry Central School District Board of Education (hereinafter together the SchoolDistrict) had actual knowledge of the facts constituting the claim within the 90-daystatutory period or a reasonable time thereafter through, among other things, a medicalclaim form completed by the principal of the Holbrook Elementary School. Moreover,the petitioners demonstrated a reasonable excuse for the delay in seeking leave to serve alate notice of claim in that the mother of the infant petitioner was unaware of the severityof the infant's left elbow injury at the time of the incident, and had relied [*2]upon the School District's prior willingness to assumeresponsibility for the infant's medical expenses (see Matter of Hursala v Seaford Middle School, 46 AD3d892, 893 [2007]; Matter ofVitale v Elwood Union Free School Dist., 19 AD3d 610, 611 [2005]; Matterof Presley v City of New York, 254 AD2d 490 [1998]; Matter of Tetro vPlainview-Old Bethpage Cent. School Dist., 99 AD2d 814 [1984]). In addition, theSchool District will not be substantially prejudiced in maintaining a defense on the meritsas a result of the petitioner's delay in seeking leave to serve a late notice of claim (seeMatter of Hursala v Seaford Middle School, 46 AD3d at 893; Matter of Vitale vElwood Union Free School Dist., 19 AD3d at 611; Bovich v East Meadow Pub.Lib., 16 AD3d 11, 20 [2005]; Matter of Tortorici v East Rockaway Pub.School Dist. No. 19, 191 AD2d 495, 496).
The School District's remaining contention is without merit. Eng, P.J., Rivera,Chambers, Sgroi and Miller, JJ., concur.