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• Title: Matter Tina M. Tetro v. Plainview-Old Bethpage Central School District
• Author : Supreme Court of New York
• Release Date : January 21, 1984
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 75 KB

Description

In a proceeding pursuant to subdivision 5 of section 50-e of the General Municipal Law, claimant appeals (1) as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Becker, J.), dated November 9, 1982, as, upon vacating respondents prior default in answering, denied her application for leave to serve a late notice of claim on the merits, and (2) from an order of the same court, dated March 30, 1983, which denied her motion for reargument. Appeal from the order dated March 30, 1983, dismissed. No appeal lies from an order denying reargument. Order dated November 9, 1982, reversed, insofar as appealed from, on the law and as a matter of discretion, and application granted. Claimants proposed notice of claim annexed to her motion papers deemed served. The appellant is awarded one bill of costs. On March 1, 1976 claimant, who was then 11 years old, fractured her elbow while using a slide on the grounds of the respondent school district. The accident was reported immediately to the school district. As a result of the accident, claimant underwent surgery to repair the fracture. There was also an indication at that time that additional surgery would be required when claimant was older, following which a determination could be made as to the extent and permanency of her injury. Following the accident, the school district sent a medical insurance claim form to claimants mother, which she completed and returned. According to claimant, the school district paid all or almost all of her medical expenses at that time. In January, 1982, after claimant had reached the age of 16, she re-entered the hospital for further surgery. The additional surgery, however, was allegedly unsuccessful and claimants arm remains permanently deformed. According to claimants mother, although the school district initially agreed to pay the expense of this additional surgery as it had paid for the past medical expenses, it subsequently declined to do so. At that time, counsel was first contacted and the instant application was made for leave to serve a late notice of claim. A proposed notice of claim attributing the cause of the accident to a loose bar at the top of the slide was annexed to the motion papers. In exercising its discretion with respect to an application for leave to serve a late notice of claim, "the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within [90 days after the claim arose] or within a reasonable time thereafter" (General Municipal Law, § 50-e, subd 5; see Matter of Somma v City of New York, 81 A.D.2d 889). The court is also required to take into [99 A.D.2d 814 Page 815]

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