Opinion
1319 CA 14-01042
01-02-2015
IN THE MATTER OF ALBERTA MACIEJEWSKI AND HENRY MACIEJEWSKI, AS PARENTS AND NATURAL GUARDIANS OF SELENA MACIEJEWSKI, AN INFANT UNDER THE AGE OF 14 YEARS, CLAIMANTS-RESPONDENTS, v. NORTH COLLINS CENTRAL SCHOOL DISTRICT, RESPONDENT-APPELLANT.
HURWITZ & FINE, P.C., BUFFALO, CONGDON, FLAHERTY, O'CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER, UNIONDALE (CHRISTINE GASSER OF COUNSEL), FOR RESPONDENT-APPELLANT. FARRELL & FARRELL, HAMBURG (KENNETH J. FARRELL OF COUNSEL), FOR CLAIMANTS-RESPONDENTS.
PRESENT: , PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
Appeal from an order of the Supreme Court, Erie County (James H. Dillon, J.), entered February 24, 2014. The order granted the application of claimants for leave to serve a late notice of claim.
HURWITZ & FINE, P.C., BUFFALO, CONGDON, FLAHERTY, O'CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER, UNIONDALE (CHRISTINE GASSER OF COUNSEL), FOR RESPONDENT-APPELLANT.
FARRELL & FARRELL, HAMBURG (KENNETH J. FARRELL OF COUNSEL), FOR CLAIMANTS-RESPONDENTS.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Supreme Court did not abuse its discretion in granting claimants' application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5). "[C]laimant[s] made a persuasive showing that [respondent] . . . acquired actual knowledge of the essential facts constituting the claim . . . [and respondent has] made no particularized or persuasive showing that the delay caused [it] substantial prejudice" (Matter of Hall v Madison-Oneida County Bd. of Coop. Educ. Servs., 66 AD3d 1434, 1435 [internal quotation marks omitted]). Further, inasmuch as "actual notice was had and there is no compelling showing of prejudice to respondent[]," claimants' failure to offer a reasonable excuse for the delay is not fatal to their application (Matter of Drozdzal v Rensselaer City Sch. Dist., 277 AD2d 645, 646; see Hall, 66 AD3d at 1435).
Entered: January 2, 2015
Frances E. Cafarell
Clerk of the Court