IN RE: LESSA EDHOLM (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed in the exercise of discretion without costs, the application is granted and the notice of claim is deemed timely served nunc pro tunc.

Memorandum: Claimant, a former employee of respondent Board of Cooperative Educational Services Erie 1 BOCES (BOCES), appeals from an order that denied her application for leave to serve a late notice of claim sounding in employment discrimination. We reverse in the exercise of our discretion.

Initially, we note that, contrary to her contention, claimant's claim accrued the date that she was advised her employment had been terminated (see Matter of Ferrara v New York State Div. of Human Rights, 154 AD3d 715, 716 [2d Dept 2017]; Peterec-Tolino v Harap, 93 AD3d 577, 577 [1st Dept 2012]), and not the date she was provided with a copy of respondents’ written response to the grievance she filed challenging that termination. “An employment discrimination claim accrues on the date that an adverse employment determination is made and communicated to the plaintiff” (Cordone v Wilens & Baker, P.C., 286 AD2d 597, 598 [1st Dept 2001]; see Gabin v Greenwich House, Inc., 210 AD3d 497, 497 [1st Dept 2022]) irrespective of what occurs during any subsequent grievance proceeding (see Matter of Queensborough Community Coll. of City Univ. of N.Y. v State Human Rights Appeal Bd., 41 NY2d 926, 926 [1977]; Pinder v City of New York, 49 AD3d 280, 281 [1st Dept 2008]). Claimant thus failed to serve a written notice of claim within 90 days of the accrual of her claim as required by General Municipal Law § 50-e and Education Law § 3813.

However, claimant filed her application for leave to file a late notice of claim within “one year after the cause of action arose” (Education Law § 3813 [2-b]) and, thus, “the court, in its discretion, may extend the time to serve a notice of claim” (§ 3813 [2-a]; cf. Spoleta Constr. & Dev. Corp. v Board of Educ. of Byron-Bergen Cent. School Dist., 221 AD2d 927, 928 [4th Dept 1995], lv denied 87 NY2d 808 [1996]). In determining whether to grant leave to serve a late notice of claim, “ ‘the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the [respondents] 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 [respondents]’ ” (Diez v Lewiston-Porter Cent. Sch. Dist., 140 AD3d 1665, 1665 [4th Dept 2016]; see Brown v City of Buffalo, 100 AD3d 1439, 1440 [4th Dept 2012]; see generally Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 461 [2016], rearg denied 29 NY3d 963 [2017]). While “the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether [respondents] received actual knowledge of the facts constituting the claim in a timely manner” (Matter of Szymkowiak v New York Power Auth., 162 AD3d 1652, 1654 [4th Dept 2018] [internal quotation marks omitted]; see Matter of Turlington v Brockport Cent. Sch. Dist., 143 AD3d 1247, 1248 [4th Dept 2016]). “[A] court's decision to grant or deny a motion to serve a late notice of claim is purely a discretionary one” (Newcomb, 28 NY3d at 465 [internal quotation marks omitted]) and, “[w]hile the discretion of Supreme Court [in considering the application] will generally be upheld absent demonstrated abuse[,] ․ such discretion is ultimately reposed in [the Appellate Division]” (Matter of Dusch v Erie County Med. Ctr., 184 AD3d 1168, 1169 [4th Dept 2020] [internal quotation marks omitted]; see Arnold v Town of Camillus, 222 AD3d 1372, 1377 [4th Dept 2023]).

Although claimant here failed to demonstrate a reasonable excuse for failing to serve a timely notice of claim, such failure “is not fatal where ․ actual notice was had and there is no compelling showing of prejudice to [respondents]” (Shaul v Hamburg Cent. Sch. Dist., 128 AD3d 1389, 1389 [4th Dept 2015] [internal quotation marks omitted]; see Matter of Mary Beth B. v West Genesee Cent. Sch. Dist., 186 AD3d 979, 980 [4th Dept 2020]; Matter of Lindstrom v Board of Educ. of Jamestown City School Dist., 24 AD3d 1303, 1304 [4th Dept 2005]).

We conclude that the record establishes that respondents “acquired actual knowledge of the essential facts constituting the claim” within the 90-day period in which the notice of claim was required to be served when claimant filed the grievance challenging her termination (General Municipal Law § 50-e [5]; Education Law § 3813 [2-a]; see Matter of Polito v North Babylon Sch. Dist., 246 AD3d 1098, 1099 [2d Dept 2026]; Matter of Christopher M. v Boquet Val. Cent. Sch. Dist., 200 AD3d 1176, 1177 [3d Dept 2021]). We further conclude that respondents would not be prejudiced by the late notice of claim inasmuch as they had the ability to collect whatever evidence they needed and gather and preserve any witness statements at the time the grievance was filed (see generally Polito, 246 AD3d at 1100; Matter of Mahan v Board of Educ. of Syracuse City School Dist., 269 AD2d 834, 834-835 [4th Dept 2000]).

Thus, we reverse the order in the exercise of our discretion by granting the application for leave to serve a late notice of claim (see generally Jarrod W.S. v Jordan-Elbridge Cent. Sch. Dist., 249 AD3d 1491, 1494 [4th Dept 2026]; Arnold, 222 AD3d at 1380; Matter of Battaglia v Medina Cent. School Dist., 204 AD2d 997, 997-998 [4th Dept 1994]), and deem the notice of claim timely served nunc pro tunc (see Jarrod W.S., 249 AD3d at 1494; Terrigino v Village of Brockport, 88 AD3d 1288, 1288 [4th Dept 2011]).

Entered: October 9, 2026

Ann Dillon Flynn

Clerk of the Court