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

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

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 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.

Respondents argue that Supreme Court improperly granted leave to file the late notices of claim since petitioners failed to present an adequate or reasonable excuse for their failure to comply with the notice requirement, the District did not receive timely notice of the facts constituting the claim, and substantial prejudice resulted from the disclaimer of the District's insurance carriers due to the lack of timely notice of the incident, as well as other factors impacting the District's ability to defend.

To maintain a tort action against a school district, a notice of claim must be filed within 90 days after the claim arises (see General Municipal Law § 50-e; Education Law § 3813 [2]). However, the service of a late notice of claim may be authorized in the trial court's discretion after consideration of various factors, including, but not limited to, the statutory factors of (1) whether a reasonable excuse for the delay was presented, (2) whether the school district or its agents had actual knowledge of the essential facts of the claim within 90 days after the claim arose, and (3) whether the delay in service of the notice of claim substantially prejudiced the ability to defend the claim on the merits (see General Municipal Law § 50-e [5]; Matter of Lanphere v County of Washington, 301 AD2d 936, 937 [2003]; Matter of Welch v Board of Educ. of Saratoga Cent. School Dist., 287 AD2d 761, 762 [2001]). Further, it is...