IN RE: Nicholas VITALE (2005)

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, Elwood Union Free School District and Harley Avenue Primary School appeal from an order of the Supreme Court, Suffolk County (Oliver, J.), dated July 9, 2004, which granted the petition.

ORDERED that the order is affirmed, with costs.

The appellants do not dispute that they had immediate notice of the infant petitioner's schoolyard accident, and actually interviewed eyewitnesses and prepared an accident report (see Matter of Hayes v. Peru Cent. School Dist., 281 A.D.2d 794, 795, 722 N.Y.S.2d 104;  Swensen v. City of New York, 126 A.D.2d 499, 500, 511 N.Y.S.2d 20).   Moreover, although the petition for leave to serve a late notice of claim came 69 days after the expiration of the statutory 90-day period (see General Municipal Law § 50-e[1] ), the delay was due to the time necessary to determine that the infant petitioner's hearing loss was permanent (see Matter of Hayes v. Peru Cent. School Dist., supra at 795-796, 722 N.Y.S.2d 104;  Matter of Bowman v. Capital Dist. Transp. Auth., 244 A.D.2d 638, 639, 663 N.Y.S.2d 727;  Matter of Brown v. New York City Hous. Auth., 194 A.D.2d 667, 599 N.Y.S.2d 92;  Swensen v. City of New York, supra at 500, 511 N.Y.S.2d 20).   Finally, the petitioners tendered undisputed evidence that a teacher and a student with knowledge of the accident were still, respectively, working at and attending the school when the instant petition was filed.   Accordingly, the delay did not substantially prejudice the appellants in presenting a defense on the merits.   Under these circumstances, the Supreme Court providently exercised its discretion in granting the petition for leave to serve a late notice of claim (see Matter of Welch v. Board of Educ. of Saratoga Cent. School Dist., 287 A.D.2d 761, 731 N.Y.S.2d 94;  General Municipal Law § 50-e[5] ).