Opinion
No. CA 07-02065.
March 14, 2008.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J), entered January 4, 2007. The order denied the application of claimant for leave to serve a late notice of claim.
CELLINO BARNES, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR CLAIMANT-APPELLANT.
ALISA A. LUKASIEWICZ, CORPORATION COUNSEL, BUFFALO (CARMEN J. GENTILE OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
Present: Martoche, J.P., Lunn, Fahey, Peradotto and Pine, JJ.
It is hereby ordered that the order so appealed from is unanimously reversed in the exercise of discretion without costs and the application is granted upon condition that the proposed notice of claim is served within 20 days of the date of entry of the order of this Court.
Memorandum: Supreme Court improvidently exercised its discretion in denying claimant's application for leave to serve a late notice of claim. Although claimant "`fail[ed] to offer a reasonable excuse for the delay in [serving] a notice of claim, [such delay] is not fatal where, as here, actual notice was had and there is no compelling showing of prejudice to [the respondents]'" ( Hale v Webster Cent. School Dist., 12 AD3d 1052, 1053 [2004]; see Matter of Gilbert v Eden Cent. School Dist, 306 AD2d 925, 926; see generally Matter of Henderson v Town of Van Buren, 281 AD2d 872, 873). Claimant alleged in support of her application that she was sexually assaulted by respondent Greg O'Shei, a police officer employed by respondent Buffalo Police Department (Police Department), and that the last sexual assault occurred in February 2006. Claimant reported the sexual assaults to the Police Department on August 28, 2006, and respondents made no showing that they were substantially prejudiced by the delay ( see Gilbert, 306 AD2d at 926-927).