Zimmet by Zimmet v. Huntington Union Free School Dist. (Dist. No. 3)

• Decision Date: 02 November 1992
• Citation: 187 A.D.2d 436,589 N.Y.S.2d 546
• Parties: , 78 Ed. Law Rep. 971 In the Matter of Benjamin Arthur ZIMMET, an Infant, by His Father and Natural Guardian, Donald J. ZIMMET, Respondent, v. HUNTINGTON UNION FREE SCHOOL DISTRICT (DISTRICT # 3), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 546

589 N.Y.S.2d 546

187 A.D.2d 436, 78 Ed. Law Rep. 971

In the Matter of Benjamin Arthur ZIMMET, an Infant, by His

Father and Natural Guardian, Donald J. ZIMMET, Respondent, v. HUNTINGTON UNION FREE SCHOOL DISTRICT (DISTRICT # 3), Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 2, 1992.

Michael P. Hunt, Woodbury (Ann K. Kandel, of counsel), for appellant.

Reichenbaum & Silberstein, P.C., Great Neck (Meryl R. Neuren and Vickie R. Silver, of counsel), for respondent.

Before THOMPSON, J.P., and HARWOOD, BALLETTA, ROSENBLATT and EIBER, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the appeal is from an order of the Supreme Court, Suffolk County (Lama, J.), entered October 19, 1990, which granted the application.

ORDERED that the order is affirmed, with costs.

The record at bar establishes that on the day the petitioner was injured on school property, he was observed by a school aide and was tended to by the school nurse. Thereafter, the accident was reported to the school principal, an accident report was filled out, and medical insurance forms were filed, resulting in a partial reimbursement to the petitioner's family for the medical expenses incurred as a result of the injuries sustained due to the accident. Under these circumstances, we find that the petitioner adequately established that the school district had actual notice of the accident on the day that it occurred (see, Strevell v. South Colonie Central School Dist., 144 A.D.2d 733, 535 N.Y.S.2d 147; Pepe v. Somers Central School Dist., 108 A.D.2d 799, 485 N.Y.S.2d 315; Matter of Lockskin v. South Colonie Central School Dist., 81 A.D.2d 929, 439 N.Y.S.2d 505), and that the petitioner's fractured wrist was a serious enough injury to have "alerted respondent to the advisability of undertaking a thorough investigation of the incident" (DeGroff v. Bethlehem Central School Dist., 92 A.D.2d 702, 460 N.Y.S.2d 630). In addition, it is apparent that the petitioner's 14-month delay in filing a notice of claim was occasioned by his family's reliance upon the school district's representation that it would assume responsibility for the petitioner's medical expenses--at least part of which it paid before declining to cover the balance (see, Matter of Tetro v. Plainview-Old Bethpage Central School Dist., 99 A.D.2d 814, 472 N.Y.S.2d 146). Under the circumstances, the application for leave to...