Hale v. Webster Central School District

Appeal from an order of the Supreme Court, Monroe County (Andrew V. Siracuse, J.), entered April 28, 2003. The order denied plaintiffs’ application for leave to serve a late notice of claim. It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs, the application is granted and the notice of claim is deemed served timely nunc pro tunc. Memorandum: Plaintiffs commenced this action seeking damages for the alleged contamination of their property, which is located adjacent to defendant’s school bus garage. The contamination allegedly occurred when petroleum was discharged from underground storage tanks at the garage. Plaintiffs first learned of the contamination by memorandum dated August 28, 2001 and served an untimely notice of claim on August 19, 2002 (see Potanovic v County of Rockland, 267 AD2d 291 [1999]). On November 26, 2002, plaintiffs sought leave to serve a late notice of claim, and Supreme Court denied their application. We reverse. Although courts are vested with broad discretion in determining whether to grant an application for leave to serve a late notice of claim (see Palumbo v City of Buffalo, 1 AD3d 1032 [2003]), we conclude herein that the court abused its discretion in denying the application. We therefore grant plaintiffs’ application and deem the notice of claim served timely nunc pro tunc. We conclude that plaintiffs established that defendant had actual knowledge of the essential facts underlying the claim based on its involvement in the investigation of the contamination and the remediation thereof (see Nationwide Ins. Co. v Village of Alexandria Bay, 299 AD2d 855, 856 [2002]; cf. Palumbo, 1 AD3d [1053] at 1033). Plaintiffs’ “failure to offer a reasonable excuse for the delay in [serving] a notice of claim is not fatal where, as here, actual notice was had and there is no compelling showing of prejudice to [defendant]” (Matter of Drozdzal v Rensselaer City School Dist., 277 AD2d 645, 646 [2000]; see Matter of Henderson v Town of Van Buren, 281 AD2d 872 [2001]; Wetzel Servs. Corp. v Town of Amherst, 207 AD2d 965 [1994]). In view of our determination herein, we do not address plaintiffs’ remaining contentions. All concur except Hurlbutt, J.P., and Hayes, J., who dissent and vote to affirm in the following memorandum.