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Late Notice of Claim Allowed In Absence of Reasonable Excuse

In affirming the grant of leave to file a late notice of claim in the absence of a reasonable excuse, the Second Department wrote:

Here, the Fire Island Union Free School District (hereinafter the District) acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose …. Immediately after the petitioner allegedly was injured in an accident at a school in the District, the petitioner told the school’s custodian how the accident occurred, a District employee called emergency medical services, and the petitioner was transported to a hospital. An incident form was prepared by the District which indicated the time and place of the accident and the petitioner’s injuries, and the petitioner’s accident was discussed at a construction meeting attended by the school’s superintendent. Since the District acquired timely knowledge of the essential facts constituting the petitioner’s claim, the petitioner met his initial burden of showing a lack of prejudice …. The District’s conclusory assertions of prejudice, based solely on the petitioner’s delay in serving the notice of claim, were insufficient to rebut the petitioner’s showing … 

While the petitioner’s excuses for his failure to serve a timely notice of claim were not reasonable …, the absence of a reasonable excuse is not fatal to the petition where, as here, there was actual notice and absence of prejudice …. Matter of Rodriquez v Woodhull Sch, 2013 NY Slip Op 02754, 2nd Dept, 4-24-13

 

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City Failed to Affirmatively Prove It Did Not Have Notice of Dangerous Cond... Late Notice of Claim Should Not Have Been Allowed