Ireland v. Hinkle
| Decision Date | 26 December 1991 |
| Parties | , 71 Ed. Law Rep. 875 In the Matter of Dorothy M. IRELAND, et al., Appellants, v. Milford C. HINKLE, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Hinman, Howard & Kattell (Louis J. Callea, of counsel), Binghamton, for appellants.
Thaler & Thaler (Richard T. John, of counsel), Ithaca, for respondents.
Before MAHONEY, P.J., and CASEY, LEVINE, MERCURE and CREW, JJ.
Appeal from an order of the Supreme Court (Ingraham, J.), entered February 14, 1991 in Cortland County, which denied petitioners' application pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim.
At issue on this appeal is whether Supreme Court erred in denying petitioners' application for leave to serve a late notice of claim upon respondent De Ruyter Central School District (see, Education Law § 3813 [2-a]; General Municipal Law § 50-e[5]. Petitioner Dorothy M. Ireland (hereinafter petitioner) was injured on July 12, 1989 when her vehicle collided with a bus owned by the school district and operated by respondent Milford C. Hinkle. The school district's insurer contacted petitioner within days of the accident and commenced an investigation. The school district does not deny that it knew of the accident and also had an opportunity to investigate.
In September 1989 petitioner received a letter from the administrator of her employer's workers' compensation self-insurance plan advising her to file a notice of claim with the school district before October 12, 1989. A notice of claim was prepared on October 11, 1989 and served on the school district on October 12, 1989, two days after the expiration of the 90-day period contained in Education Law § 3813(2). In October 1990, petitioner discovered that the notice of claim was late. Shortly before the expiration of the one-year and 90-day period referred to in General Municipal Law § 50-i (see, Education Law § 3813[2], petitioner moved for permission to serve a late notice of claim. Supreme Court denied the application and this appeal ensued.
We agree with petitioner that Supreme Court erred in denying the application upon the ground that little or no reason was given for the delay. In Matter of Krohn v. Berne-Knox-Westerlo Cent. School Dist., 168 A.D.2d 826, 563 N.Y.S.2d 958, we held that failure to allege a reasonable excuse for the delay is not fatal to an application for leave to serve a late notice of claim when the school district and its insurer had immediate notice of the accident and an adequate opportunity to investigate, and there is no indication of prejudice to the school district. In any event, it is apparent that the delay in making the application was due to petitioner's mistaken belief that the notice of claim was timely filed, and the mistake was attributable in part to the confusing advice that was given by the workers' compensation self-insurance administrator. Because the school district and its insurer had prompt notice of the accident and an adequate opportunity to investigate, and in the absence of any indication of prejudice to the school district, we are of the view that petitioner's application should be granted (see, Matter of Norstrand v. City of Rochester, 159 A.D.2d 1019, 552 N.Y.S.2d 465; Matter of Delzotto v. County of Warren, 137 A.D.2d 950, 525 N.Y.S.2d 373).
The school district contends that Supreme Court's order should be affirmed on the ground that an appropriate school officer (see, CPLR 311[7] did not receive the moving papers until more than one year and 90 days after the accident, a claim that was rejected by Supreme Court. General Municipal Law § 50-i(1)(c) requires that an action based upon a tort claim against a school district be commenced within one year and 90 days after the happening of the event upon which the claim is based. General Municipal Law § 50-e(5) and Education Law § 3813(2-a), which contain the discretionary authority for a court to extend the time within which to file a notice of claim, provide that the extension shall not exceed the time limited for the commencement of the action. As a general rule, therefore, a court lacks the authority to permit the late filing of a notice of claim when the application is made after the expiration of the one-year and 90-day period (Pierson v. City of New York, 56 N.Y.2d...
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