Turlington v. Brockport Cent. Sch. Dist.
| Decision Date | 07 October 2016 |
| Citation | 2016 N.Y. Slip Op. 06572,39 N.Y.S.3d 338,143 A.D.3d 1247 |
| Parties | In the Matter of Claim of Kimberly TURLINGTON, On behalf of Nicole Turlington, an Infant, Claimant–Respondent, v. BROCKPORT CENTRAL SCHOOL DISTRICT, Respondent–Appellant. |
| Court | New York Supreme Court — Appellate Division |
143 A.D.3d 1247
39 N.Y.S.3d 338
2016 N.Y. Slip Op. 06572
In the Matter of Claim of Kimberly TURLINGTON, On behalf of Nicole Turlington, an Infant, Claimant–Respondent,
v.
BROCKPORT CENTRAL SCHOOL DISTRICT, Respondent–Appellant.
Supreme Court, Appellate Division, Fourth Department, New York.
Oct. 7, 2016.
Harris Beach PLLC, Pittsford (Cristina A. Bahr of Counsel), for Respondent–Appellant.
R. Brian Goewey, Rochester, for Claimant–Respondent.
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DeJOSEPH, AND NEMOYER, JJ.
MEMORANDUM:
Supreme Court abused its discretion in granting claimant's application for leave to serve a late notice of claim pursuant to General Municipal Law § 50–e (5) approximately one year after the incident in which her daughter was injured occurred. “It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are whether the claimant has demonstrated a reasonable excuse for the delay, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining a defense on the merits” (Le Mieux v. Alden High Sch., 1 A.D.3d 995, 996, 767 N.Y.S.2d 348 ). “While the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether the [municipality] received actual knowledge of the facts constituting the claim in a timely manner” (Matter of Henderson v. Town of Van Buren, 281 A.D.2d 872, 873, 723 N.Y.S.2d 282 ; see Hilton v. Town of Richland, 216 A.D.2d 921, 921, 629 N.Y.S.2d 130 ). It is well established that “[k]nowledge of the injuries or damages claimed ..., rather than mere notice of the underlying occurrence, is necessary to establish actual knowledge of the essential facts of the claim within the meaning of General Municipal Law § 50–e (5) ” (Lemma v. Off Track...
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