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Leave to File Late Notice of Claim Should Have Been Granted

The Second Department determined Supreme Court should have granted leave to file a late notice of claim in an action stemming from an assault by students against plaintiff (also a student). Plaintiff had been confronted and threatened by two students. Plaintiff’s mother informed the school and asked for a meeting with the two students’ parents. Nothing was done by the school. One week later, the plaintiff was beaten by the two students. Plaintiff sought to file a notice of claim a month after the 90-day deadline. The court explained the relevant analytical criteria:

General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time to serve a notice of claim … . “Whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter is seen as a factor which should be accorded great weight in determining whether or not to grant leave to serve a late notice of claim” … . The court must also consider other relevant circumstances, including: (1) whether the claimant was an infant at the time the claim arose and, if so, whether there was a nexus between the petitioner’s infancy and the delay in service of a notice of claim; (2) whether the claimant had a reasonable excuse for the delay; and (3) whether the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see General Municipal Law § 50-e[5]…).

Timely notice of the facts underlying the claim must be acquired within the 90-day period “or a reasonable time thereafter”… . Here the [defendants]received the petition for leave to serve a late notice of claim approximately one month after the expiration of the 90-day period. Thus, the [defendants] acquired actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the 90-day period … .

Because the [defendants] acquired timely knowledge of the essential facts constituting the petitioners’ claim, the petitioners met their initial burden of showing a lack of prejudice … . The [defendants’] conclusory assertions of prejudice, based solely on the petitioners’ one-month delay in serving the notice of claim, were insufficient to rebut the petitioners’ showing … . Matter of Regan v City of New York, 2015 NY Slip Op 06826, 2nd Dept 9-16-15

 

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