Folmar v. Lewiston-Porter Cent. Sch. Dist.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: CENTRA
• Decision Date: 10 June 2011
• Docket Number: 809 CA 11-00307
• Citation: Folmar v. Lewiston-Porter Cent. Sch. Dist., 809 CA 11-00307 (N.Y. App. Div. Jun 10, 2011)
• Parties: MONA FOLMAR, CLAIMANT-RESPONDENT, v. LEWISTON-PORTER CENTRAL SCHOOL DISTRICT, RESPONDENT-APPELLANT.

2011 NY Slip Op 04956

MONA FOLMAR, CLAIMANT-RESPONDENT,

v.LEWISTON-PORTER CENTRAL SCHOOL DISTRICT, RESPONDENT-APPELLANT.

809 CA 11-00307

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

Entered: June 10, 2011

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.

Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered April 19, 2010. The order granted the application of claimant for leave to serve a late notice of claim.

BAXTER SMITH & SHAPIRO, P.C., WEST SENECA, CONGDON, FLAHERTY, O'CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER, UNIONDALE (GREGORY A. CASCINO OF COUNSEL), FOR RESPONDENT-APPELLANT.

CELLINO & BARNES, P.C., BUFFALO (JEFFREY C. SENDZIAK OF COUNSEL), FOR CLAIMANT-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the application is denied.

Memorandum: Claimant injured her wrist on May 28, 2009 while driving a school bus in the parking lot of respondent's property. The injury occurred when claimant slammed on the brakes of the school bus in order to avoid a collision with a vehicle pulling out of a parking space, whereupon a student on the bus who was standing near the front fell and landed on claimant's arm and wrist. We agree with respondent that Supreme Court abused its discretion in granting claimant's application, dated February 8, 2010, for leave to serve a late notice of claim (see General Municipal Law § 50-e [5]; Palumbo v City of Buffalo, 1 AD3d 1032). "It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are whether the claimant has demonstrated a reasonable excuse for the delay, whether [respondent] acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would substantially prejudice [respondent]"(Le Mieux v Alden High School, 1 AD3d 995, 996). Here, claimant failed to establish a reasonable excuse for her failure to serve a timely notice of claim (see Matter of Heffelfinger v Albany Intl. Airport, 43 AD3d 537, 539; Le Mieux, 1 AD3d at 996). In addition, "[claimant] failed to establish that [respondent] had actual knowledge of the essential facts constituting the claim" within the requisite time period (Palumbo, 1 AD3d at 1033). Respondent's "knowledge of the accident and the injury, without more, does not constitute actual knowledge of the essential facts constituting the claim' " (Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147). The proposed notice of claim alleges that claimant was injured...