Hess v. West Seneca Central School District

Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered May 11, 2009. The order, insofar as appealed from, granted that part of claimant’s application seeking leave to serve a late notice of claim on respondent West Seneca Central School District. It is hereby ordered that the order so appealed from is affirmed without costs. Memorandum: Supreme Court did not abuse its discretion in granting that part of claimant’s application seeking leave to serve a late notice of claim on West Seneca Central School District (respondent) pursuant to General Municipal Law § 50-e (5) (see Education Law § 3813 [2-a]). Although claimant did not offer a reasonable excuse for her failure to serve a timely notice of claim, “that failure is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respon 1569 dent]” (Matter of Hall v Madison-Oneida County Bd. of Coop. Educ. Servs., 66 AD3d 1434, 1435 [2009] [internal quotation marks omitted]), and that is the case here. In opposition to the application, respondent “failed to demonstrate substantial prejudice [ ] or that the [claimant’s] claim was patently without merit” (Matter of Chambers v Nassau County Health Care Corp., 50 AD3d 1134, 1135 [2008]). Contrary to the dissent, we are unpersuaded that this limited record supports a determination that the claim against respondent is patently meritless (see Matter of Place v Beekmantown Cent. School Dist., 69 AD3d 1035, 1036-1037 [2010]). Claimant seeks to commence an action against respondent on the ground that respondent breached its duty of care to her son when he was “released into a potentially hazardous situation” (Ernest v Red Cr. Cent. School Dist., 93 NY2d 664, 671 [1999], rearg denied 93 NY2d 1042 [1999]; see McDonald v Central School Dist. No. 3 of Towns of Romulus, Varick & Fayette, Seneca County, 179 Misc 333, 335-336 [1941], affd 264 App Div 943 [1942], affd 289 NY 800 [1943]). “It would be premature, prior to the commencement of an action, for this Court to opine that no action based on the proposed notice of claim could have merit” (Matter of Industrial Risk Insurers v City of New York, 2003 NY Slip Op 50639DJ], *8 [2003]; see Matter of Lacey v Village of Lake Placid, 280 AD2d 863 [2001]). All concur except Scudder, P.J., and Peradotto, J, who dissent and vote to reverse the order insofar as appealed from in accordance with the following memorandum.