The Court of Appeals, in a full-fledged opinion by Judge DeFiore, reversing the appellate division, clarified the procedure for establishing a school district or municipal corporation has been prejudiced by a delay in filing a notice of claim for a tort action. Here a student was injured by a car in the vicinity of the respondent school. The school had been made aware of the location and nature of the accident. After the 90-day notice of claim period had passed, petitioner learned there had been a sign erected by the school that may have had a role in the accident. In denying the motion for leave to file a late notice, Supreme Court placed the burden entirely on the petitioner to demonstrate the school was not prejudiced by the delay. The Court of Appeals clarified the relative burdens of proof on that issue:
We hold that the burden initially rests on the petitioner to show that the late notice will not substantially prejudice the public corporation. Such a showing need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice. * * *
The rule we endorse today — requiring a petitioner to make an initial showing that the public corporation will not be substantially prejudiced and then requiring the public corporation to rebut that showing with particularized evidence — strikes a fair balance. We recognize that a petitioner seeking to excuse the failure to timely comply with the notice requirement should have the initial burden to show that the public corporation will not be substantially prejudiced by the delay. The public corporation, however, is in the best position to know and demonstrate whether it has been substantially prejudiced by the late notice. Matter of Newcomb v Middle Country Cent. Sch. Dist., 2016 NY Slip Op 08581, CtApp 12-22-16
MUNICIPAL LAW (PROCEDURE FOR DETERMINING WHETHER RESPONDENT HAS BEEN PREJUDICED BY PETITIONER’S FAILURE TO TIMELY FILE A NOTICE OF CLAIM CLARIFIED)/EDUCATION-SCHOOL LAW (PROCEDURE FOR DETERMINING WHETHER RESPONDENT HAS BEEN PREJUDICED BY PETITIONER’S FAILURE TO TIMELY FILE A NOTICE OF CLAIM CLARIFIED)/NOTICE OF CLAIM (MUNICIPAL LAW, PROCEDURE FOR DETERMINING WHETHER RESPONDENT HAS BEEN PREJUDICED BY PETITIONER’S FAILURE TO TIMELY FILE A NOTICE OF CLAIM CLARIFIED)