Dalton v. Akron Cent. Sch.

• Court: New York Supreme Court — Appellate Division
• Citation: Dalton v. Akron Cent. Sch., 107 A.D.3d 1517, 966 N.Y.S.2d 787, 2013 N.Y. Slip Op. 4457 (N.Y. App. Div. 2013)
• Decision Date: 14 June 2013
• Parties: David H. DALTON, II, Claimant–Respondent, v. AKRON CENTRAL SCHOOLS, Respondent–Appellant.

107 A.D.3d 1517

966 N.Y.S.2d 787

2013 N.Y. Slip Op. 04457

David H. DALTON, II, Claimant–Respondent,

v.AKRON CENTRAL SCHOOLS, Respondent–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 14, 2013.

Hurwitz & Fine, P.C., Buffalo, Congdon Flaherty O'Callaghan Reid Donlon Travis & Fishlinger, Uniondale (Gregory A. Cascino of Counsel), for Respondent–Appellant.

Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Claimant–Respondent.

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.

MEMORANDUM:

Claimant was allegedly injured when he stepped out of his vehicle and slipped on snow or ice in a parking lot of a school in respondent's school district. Respondent contends that Supreme Court erred in granting claimant's application for leave to serve a late notice of claim because it did not have actual knowledge of the essential facts of the claim within 90 days of the incident; claimant failed to provide an excuse for not serving a timely notice of claim; and it is severely prejudiced because the accident allegedly occurred more than 13 months before claimant sought leave to serve a late notice of claim. We affirm.

A notice of claim must be served within 90 days after the claim accrues, although a court may grant leave extending that time, provided that the application therefor is made before the expiration of the statute of limitations period of one year and 90 days ( seeGeneral Municipal Law § 50–e [1][a]; [5] ). The decision whether to grant such leave “compels consideration of all relevant facts and circumstances,” including the “nonexhaustive list of factors” in section 50–e(5)( Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 539, 814 N.Y.S.2d 580, 847 N.E.2d 1154). The three main factors are “whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality” ( Matter of Friend v. Town of W. Seneca, 71 A.D.3d 1406, 1407, 895 N.Y.S.2d 895;see generally§ 50–e[5] ). “[T]he presence or absence of any one of the numerous relevant factors the court must consider is not determinative” ( Salvaggio v. Western Regional Off–Track Betting Corp., 203 A.D.2d 938, 938–939, 612 N.Y.S.2d 94), and “[t]he court is vested with broad discretion to grant or deny the application” ( Wetzel Servs. Corp. v. Town of Amherst, 207 A.D.2d 965, 965, 616 N.Y.S.2d 832). Absent a “clear abuse” of the court's broad discretion, “the determination of an application for leave to serve a late notice of claim will not be disturbed” ( Matter of Hubbard v. County of Madison, 71 A.D.3d 1313, 1315, 897 N.Y.S.2d 538 [internal quotation marks omitted] ).

A factor to be accorded great weight in determining whether to grant leave to serve a late notice of claim is whether the respondenthad actual knowledge of the facts underlying the claim, including knowledge of the injuries or damages ( see e.g. Santana v. Western Regional Off–Track Betting Corp., 2 A.D.3d 1304, 1304–1305, 770 N.Y.S.2d 258,lv. denied2 N.Y.3d 704, 778 N.Y.S.2d 774, 811 N.E.2d 36), and the claimant bears the burden of demonstrating that the respondent had actual knowledge ( see Matter of Riordan v. East Rochester Schs., 291 A.D.2d 922, 923, 737 N.Y.S.2d 202,lv. denied98 N.Y.2d 603, 745 N.Y.S.2d 502, 772 N.E.2d 605). Here, the record establishes that claimant met his burden of demonstrating that respondent had actual knowledge of the incident, including knowledge of claimant's injuries. Claimant averred in his affidavit in support of his application that, “[o]n December 2, 2010 at approximately 7:00 a.m., I was injured when I slipped and fell in the contractor's parking lot of Akron Central Schools due to the icy and slippery conditions in the parking lot (hereinafter ‘the incident’).” Claimant's definition of “the incident” thus includes the manner in which the accident occurred, as well as the injuries resulting therefrom. Claimant further averred in his affidavit that, after he fell, he went inside the school and told school employees about “the incident.” Because the incident was defined in his affidavit as both the fall in the parking lot and the injuries resulting therefrom, we conclude that the court did not abuse its discretion in determining that respondent had actual knowledge of the underlying occurrence and claimant's injuries. Moreover, the record establishes that claimant's prompt notice to respondent enabled respondent to commence a timely investigation of the incident and thus there was no prejudice to respondent ( cf. Le Mieux v. Alden High Sch., 1 A.D.3d 995, 996–997, 767 N.Y.S.2d 348). The court therefore properly allowed the service of the late notice of claim ( see Wetzel Servs. Corp., 207 A.D.2d at 965, 616 N.Y.S.2d 832;see also McBee v. County of Onondaga, 34 A.D.3d 1360, 1360, 826 N.Y.S.2d 531).

All concur except Smith, J.P., and Lindley, J., who dissent and vote to reverse in accordance with the following Memorandum:

We respectfully dissent. Where, as here, a claimant does not offer a reasonable excuse for failing to serve a timely notice of claim, Supreme Court may grant leave to serve a late notice of claim only if the respondent has actual knowledge of the essential facts underlying the claim and there is no compelling showing of prejudice to the...