In the Matter of Isereau v. Brushton-Moira School District, 94310.

• Court: New York Supreme Court Appellate Division
• Citation: 2004 NY Slip Op 03191,6 A.D.3d 1004,776 N.Y.S.2d 129
• Docket Number: 94310.
• Parties: In the Matter of DARRELL ISEREAU, Respondent, v. BRUSHTON-MOIRA SCHOOL DISTRICT, Appellant. (Proceeding No. 1.)
• Decision Date: 29 April 2004

6 A.D.3d 1004 776 N.Y.S.2d 129 2004 NY Slip Op 03191 In the Matter of DARRELL ISEREAU, Respondent,
v.
BRUSHTON-MOIRA SCHOOL DISTRICT, Appellant. (Proceeding No. 1.) 94310. Appellate Division of the Supreme Court of the State of New York, Third Department. April 29, 2004.

Appeals from two orders of the Supreme Court (Demarest, J.), entered April 28, 2003 and May 5, 2003 in Franklin County, which, inter alia, granted petitioners' applications pursuant to General Municipal Law § 50-e (5) for leave to file late notices of claim.

MUGGLIN, J.

In these consolidated appeals, we are asked to reverse Supreme Court's grant of leave to file late notices of claim against respondent Brushton-Moira School District and its high school. On August 19, 2002, petitioners Darrell Isereau and Jason K. Houghton, employees of Bette & Cring, LLC, the general contractor on a District construction project, were injured while erecting a greenhouse. Isereau and Houghton were installing an aluminum main header beam when the ladder upon which one of them was standing slipped, causing both to fall approximately 15 feet to the concrete floor. Isereau struck his head and was rendered unconscious. Houghton sustained a visible injury to his knee. Both were transported by ambulance to a local hospital. Two District employees responded to the accident scene—the head custodian and the "clerk of the works"— and they observed the injured workers and learned the essential facts of the accident.

By order to show cause filed January 24, 2003, Isereau sought leave to file a late notice of claim against the District based upon alleged violations of Labor Law §§ 200, 240 and 241 (6), and common-law negligence. According to the papers submitted in support of the order to show cause, Isereau suffered from dizziness, lapse of memory, confusion and lack of concentration to the date of his application. Further, he asserts that he was unaware of the legal requirements regarding the filing of a notice of claim until he met with an attorney on December 4, 2002. He

6 A.D.3d 1005

contends that leave to serve the late notice of claim should be allowed due to the shortness of the delay, the District's likely notice of the essential facts of the accident, his incapacity and the lack of demonstrable prejudice to the District.

The application for leave to serve a late notice of claim against the District and its high school by Houghton and his wife was brought on by order to show cause filed February 21, 2003. Asserting the same claims therein as Isereau, the Houghtons urge that their application should be granted since the District had knowledge of the accident through at least two of its employees, Houghton was unaware of the permanency of his knee injury, that prior to seeing an attorney on January 23, 2003, he was mentally and physically incapacitated, and there is no demonstrable prejudice to the District's ability to defend their claim.

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