Strevell v. South Colonie Cent. School Dist.
| Decision Date | 03 November 1988 |
| Citation | 535 N.Y.S.2d 147,144 A.D.2d 733 |
| Parties | , 50 Ed. Law Rep. 872 In the Matter of Ronald STREVELL, Individually and as Natural Parent of Cindy Strevell, Appellant, v. SOUTH COLONIE CENTRAL SCHOOL DISTRICT, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Grasso, Rodriguez, Putorti & Grasso (William Miller, Jr., of counsel), Albany, for appellant.
Dreyer, Kinsella, Boyajian & Tuttle (Donald Boyajian, of counsel), Albany, for respondent.
Before WEISS, J.P., and MIKOLL, YESAWICH, LEVINE and HARVEY, JJ.
Appeal from an order of the Supreme Court (Prior, Jr., J.), entered June 29, 1987 in Albany County, which denied petitioner's application pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim.
On January 28, 1986, 15-year-old Cindy Strevell allegedly slipped on ice outside a door at respondent's building and fell. The incident occurred as she was exiting the building after taking a Regents examination in mathematics. As a result of the fall, Strevell purportedly suffered a displaced fracture of her left ankle. She was taken to the hospital where, on January 29, 1986, she was operated on and had two temporary pins placed in her ankle. The pins were removed in a second operation on June 24, 1986.
On June 24, 1986, petitioner, Strevell's father acting on behalf of himself and his daughter, filed a notice of claim on respondent. A motion for leave to file a late notice of claim was filed on August 4, 1986. After granting an adjournment requested by respondent, the motion was decided on December 19, 1986. Supreme Court denied the motion without prejudice to renew. On March 25, 1987, petitioner again moved for leave to file a late notice of claim. Supreme Court denied the motion and this appeal followed.
The standards governing consideration of applications for leave to file a late notice of claim have been purposely made more elastic, affording courts broad discretion (see, e.g., Hamm v. Memorial Hosp. of Greene County, 99 A.D.2d 638, 472 N.Y.S.2d 189). Such discretion is ultimately in this court (Matter of Febles v. City of New York, 44 A.D.2d 369, 372, 355 N.Y.S.2d 147; see, Matter of Delzotto v. County of Warren, 137 A.D.2d 950, 951, 525 N.Y.S.2d 373). In exercising this discretion, various factors are to be considered, including, "in particular, whether the public corporation * * * acquired actual knowledge of the essential facts constituting the claim within [90 days] or within a reasonable time thereafter" (General Municipal Law § 50-e[5] ). Other factors, relevant to the present case, include whether the delay in serving a notice of claim caused prejudice to the public corporation and whether the...
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