Sparrow v. Hewlett-Woodmere Union Free Sch. Dist.

• Decision Date: 16 October 2013
• Citation: 2013 N.Y. Slip Op. 06696,973 N.Y.S.2d 308,110 A.D.3d 905
• Parties: In the Matter of David W. SPARROW, etc., appellant, v. HEWLETT–WOODMERE UNION FREE SCHOOL DISTRICT (# 14), respondent.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 905
973 N.Y.S.2d 308
2013 N.Y. Slip Op. 06696

In the Matter of David W. SPARROW, etc., appellant,
v.
HEWLETT–WOODMERE UNION FREE SCHOOL DISTRICT (# 14), respondent.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 16, 2013.

[973 N.Y.S.2d 309]

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathryn M. Beer of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the petitioner appeals from (1) an order of the Supreme Court, Nassau County (Marber, J.), dated October 2, 2012, which denied the petition, and (2) a judgment of the same court dated December 20, 2012, which, upon the order, is in favor of the respondent and against him, in effect, dismissing the proceeding.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondent.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501[a][1] ).

In determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, (2) the petitioner was an infant at the time the claim arose and, if so, whether there was a nexus between the petitioner's infancy and the failure to serve a timely notice of claim, (3) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (4) the public corporation was substantially prejudiced by the delay in its ability to maintain its defense on the merits ( seeEducation Law § 3813[2–a]; General Municipal Law § 50–e[5]; Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 538, 814 N.Y.S.2d 580, 847 N.E.2d 1154;Matter of McLeod v. City of New York, 105 A.D.3d 744, 745, 962...