MARCHETTI v. EAST ROCHESTER CENTRAL SCHOOL DISTRICT (2003)

Supreme Court did not abuse its discretion in granting that part of the application of plaintiff mother seeking leave to serve a late notice of claim with respect to her individual claim.   Contrary to defendant's contention, the court was entitled to consider the understandable preoccupation of this single mother with caring for the infant plaintiff, who is in a permanent semi-comatose condition, while maintaining her job and dealing with her father's terminal illness (see Coonradt v. Averill Park Cent. School Dist., 75 A.D.2d 925, 926, 427 N.Y.S.2d 531;  cf.  Matter of Drozdzal v. Rensselaer City School Dist., 277 A.D.2d 645, 646, 716 N.Y.S.2d 435;  Lavoie v. Town of Ellenburg, 78 A.D.2d 714, 715, 432 N.Y.S.2d 273, lv. denied 53 N.Y.2d 602, 439 N.Y.S.2d 1025, 421 N.E.2d 852).   In any event, we note that it is undisputed that the accident was fully investigated by defendant and the police and that defendant has not been substantially prejudiced by the delay.   Thus, even if plaintiff mother had offered no excuse for her delay in serving her notice of claim, that failure would not have been fatal to the application (see Nationwide Ins. Co. v. Village of Alexandria Bay, 299 A.D.2d 855, 750 N.Y.S.2d 409;  Matter of Blair v. County of Ontario, 295 A.D.2d 933, 933-934, 744 N.Y.S.2d 743).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: