Kelli A v. Galway Cent. School Dist.

• Decision Date: 31 July 1997
• Citation: 241 A.D.2d 883,660 N.Y.S.2d 228
• Parties: , 119 Ed. Law Rep. 1120, 1997 N.Y. Slip Op. 6973 In the Matter of KELLI "A", 1 Respondent, v. GALWAY CENTRAL SCHOOL DISTRICT, Appellant, et al., Respondent. (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

Page 228

660 N.Y.S.2d 228

241 A.D.2d 883, 119 Ed. Law Rep. 1120,

1997 N.Y. Slip Op. 6973

In the Matter of KELLI "A", ¹ Respondent, v. GALWAY CENTRAL SCHOOL DISTRICT, Appellant, et al., Respondent (And Another Related Proceeding.)

Supreme Court, Appellate Division Third Department.

July 31, 1997.

Coughlin & Gerhart (Frank W. Miller, of counsel), Binghamton, for appellant.

Featherstonhaugh, Conway, Wiley & Clyne (Denis R. Hurley Jr., of counsel), Albany, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and PETERS, JJ.

MIKOLL, Justice Presiding.

Appeals from two orders of the Supreme Court (Keniry, J.), entered April 12, 1996 in Saratoga County, which granted petitioners' applications pursuant to General Municipal Law § 50-e (5) for leave to serve late notices of claim.

Petitioners (hereinafter individually referred to as victim A and victim B) were sexually abused and harassed by a male teacher while they were students of respondent Galway Central School District (hereinafter respondent) in Saratoga County. The incidents involving victim A occurred between November 1991 and June 1994 when she was less than 18 years old. The incidents involving victim B occurred between October 1992 and October 1994 when she was also less than 18 years old. In October 1994, victim B reported these incidents to a high school social worker and a full investigation of the teacher was subsequently undertaken by respondent which resulted in the teacher's resignation and criminal prosecution.

On September 9, 1994 and March 14, 1995, victims A and B respectively turned 18 years of age. In October 1995, victim A made application before Supreme Court pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim against respondent with respect to the events involving the teacher and her. Victim B made a similar application in January 1996. Without joining or consolidating the cases, Supreme Court decided both applications collectively and granted petitioners permission to serve late notices of claim. Respondent appeals, contending that Supreme Court abused its discretion in granting petitioners' applications.

We affirm. Supreme Court has broad discretion to permit the service of a late notice of claim (see, Matter of Lawrence v. County of Sullivan, 233 A.D.2d 609, 649 N.Y.S.2d 244, 245; Matter of Howe v. Village of Trumansburg, 169 A.D.2d 1018, 565 N.Y.S.2d 298; Matter of Frazzetta v. Rondout Val. Cent. School Dist., 166 A.D.2d 843, 844, 563 N.Y.S.2d 533). Among the factors for the court to consider are "whether the [municipality] had actual knowledge of the essential facts constituting the claim", "whether any prejudice will result from the delay, whether the petitioner was incapacitated during the 90-day period and whether a reasonable excuse was established for the delay" (Matter of Howe v. Village of Trumansburg, supra, at 1018-1019, 565 N.Y.S.2d 298; see, General Municipal Law § 50-e [5]; ...