        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

408
CA 12-02095
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.


DAVID H. DALTON, II, CLAIMANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

AKRON CENTRAL SCHOOLS, RESPONDENT-APPELLANT.


HURWITZ & FINE, P.C., BUFFALO, CONGDON FLAHERTY O’CALLAGHAN REID
DONLON TRAVIS & FISHLINGER, UNIONDALE (GREGORY A. CASCINO OF COUNSEL),
FOR RESPONDENT-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR CLAIMANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered March 30, 2012. The order granted the
application of claimant for leave to serve a late notice of claim.

     It is hereby ORDERED that the order so appealed from is affirmed
without costs.

     Memorandum: Claimant was allegedly injured when he stepped out
of his vehicle and slipped on snow or ice in a parking lot of a school
in respondent’s school district. Respondent contends that Supreme
Court erred in granting claimant’s application for leave to serve a
late notice of claim because it did not have actual knowledge of the
essential facts of the claim within 90 days of the incident; claimant
failed to provide an excuse for not serving a timely notice of claim;
and it is severely prejudiced because the accident allegedly occurred
more than 13 months before claimant sought leave to serve a late
notice of claim. We affirm.

     A notice of claim must be served within 90 days after the claim
accrues, although a court may grant leave extending that time,
provided that the application therefor is made before the expiration
of the statute of limitations period of one year and 90 days (see
General Municipal Law § 50-e [1] [a]; [5]). The decision whether to
grant such leave “compels consideration of all relevant facts and
circumstances,” including the “nonexhaustive list of factors” in
section 50-e (5) (Williams v Nassau County Med. Ctr., 6 NY3d 531,
539). The three main factors are “whether the claimant has shown a
reasonable excuse for the delay, whether the municipality had actual
knowledge of the facts surrounding the claim within 90 days of its
accrual, and whether the delay would cause substantial prejudice to
the municipality” (Matter of Friend v Town of W. Seneca, 71 AD3d 1406,
                                 -2-                           408
                                                         CA 12-02095

1407; see generally § 50-e [5]). “[T]he presence or absence of any
one of the numerous relevant factors the court must consider is not
determinative” (Salvaggio v Western Regional Off-Track Betting Corp.,
203 AD2d 938, 938-939), and “[t]he court is vested with broad
discretion to grant or deny the application” (Wetzel Servs. Corp. v
Town of Amherst, 207 AD2d 965, 965). Absent a “clear abuse” of the
court’s broad discretion, “the determination of an application for
leave to serve a late notice of claim will not be disturbed” (Matter
of Hubbard v County of Madison, 71 AD3d 1313, 1315 [internal quotation
marks omitted]).

     A factor to be accorded great weight in determining whether to
grant leave to serve a late notice of claim is whether the respondent
had actual knowledge of the facts underlying the claim, including
knowledge of the injuries or damages (see e.g. Santana v Western
Regional Off-Track Betting Corp., 2 AD3d 1304, 1304-1305, lv denied 2
NY3d 704), and the claimant bears the burden of demonstrating that the
respondent had actual knowledge (see Matter of Riordan v East
Rochester Schs., 291 AD2d 922, 923, lv denied 98 NY2d 603). Here, the
record establishes that claimant met his burden of demonstrating that
respondent had actual knowledge of the incident, including knowledge
of claimant’s injuries. Claimant averred in his affidavit in support
of his application that, “[o]n December 2, 2010 at approximately 7:00
a.m., I was injured when I slipped and fell in the contractor’s
parking lot of Akron Central Schools due to the icy and slippery
conditions in the parking lot (hereinafter ‘the incident’).”
Claimant’s definition of “the incident” thus includes the manner in
which the accident occurred, as well as the injuries resulting
therefrom. Claimant further averred in his affidavit that, after he
fell, he went inside the school and told school employees about “the
incident.” Because the incident was defined in his affidavit as both
the fall in the parking lot and the injuries resulting therefrom, we
conclude that the court did not abuse its discretion in determining
that respondent had actual knowledge of the underlying occurrence and
claimant’s injuries. Moreover, the record establishes that claimant’s
prompt notice to respondent enabled respondent to commence a timely
investigation of the incident and thus there was no prejudice to
respondent (cf. Le Mieux v Alden High Sch., 1 AD3d 995, 996-997). The
court therefore properly allowed the service of the late notice of
claim (see Wetzel Servs. Corp., 207 AD2d at 965; see also McBee v
County of Onondaga, 34 AD3d 1360, 1360).

     All concur except SMITH, J.P., and LINDLEY, J., who dissent and
vote to reverse in accordance with the following Memorandum: We
respectfully dissent. Where, as here, a claimant does not offer a
reasonable excuse for failing to serve a timely notice of claim,
Supreme Court may grant leave to serve a late notice of claim only if
the respondent has actual knowledge of the essential facts underlying
the claim and there is no compelling showing of prejudice to the
respondent (see Matter of Hall v Madison-Oneida County Bd. of Coop.
Educ. Servs., 66 AD3d 1434, 1435; see also Matter of Trotman v
Rochester City Sch. Dist., 67 AD3d 1484, 1485). It is well settled
that “[k]nowledge of the injuries or damages claimed by a [claimant],
rather than mere notice of the underlying occurrence, is necessary to
                                 -3-                           408
                                                         CA 12-02095

establish actual knowledge of the essential facts of the claim within
the meaning of General Municipal Law § 50-e (5)” (Santana v Western
Regional Off-Track Betting Corp., 2 AD3d 1304, 1305, lv denied 2 NY3d
704 [internal quotation marks omitted]; see Lewis v Northpole Fire
Co., Inc., 11 AD3d 911, 911).

     Here, in support of his application for leave to serve a late
notice of claim, claimant offered evidence that he provided respondent
with actual notice that he had fallen in respondent’s parking lot, but
he failed to meet his burden of establishing that he had provided
respondent with actual notice that he had been injured as a result of
that fall. We cannot agree with the majority that claimant averred in
his affidavit that he informed respondent’s employees of his injury.
Indeed, during oral argument of this appeal, claimant’s attorney
conceded that he did not interpret his client’s affidavit in that
manner. Moreover, despite the fact that respondent repeatedly
asserted in its appellant’s brief that it was unaware that claimant
had been injured, claimant did not dispute that point in his
respondent’s brief or even before us at oral argument. Instead,
claimant’s brief merely asserts that he put respondent “on notice that
he had slipped and fallen due to [respondent’s] negligent failure to
maintain the parking lot as it should have been.”

     We conclude that, because claimant did not offer a reasonable
excuse for failing to serve a timely notice of claim and failed to
meet his burden of establishing that respondent had actual notice of
the essential facts underlying the claim, the court abused its
discretion in granting claimant’s application (see Folmar v Lewiston-
Porter Cent. Sch. Dist., 85 AD3d 1644, 1645; Matter of Troutman v
Syracuse Hous. Auth., 35 AD3d 1252, 1253).




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
