matter of mccormick v eastport manor constr., 19 ad3d 826, 828 [2005]

Additionally, the Supreme Court's reliance on Matter of Zimmet v Huntington Union Free School Dist. Felice was two defects one of the two defects had been waived, and the other was excusable under General Municipal Law § 50-e (6), a subdivision of the statute not implicated in the case at bar. On December 14, 2005, Rebecca Felice, then a tenth-grade student at Eastport/South Manor Central Junior/Senior High School, allegedly was injured during a varsity cheerleading practice at the gym of a local elementary school. We also analyze the effect of this distinction in determining whether the lack of a timely notice of claim has substantially prejudiced a public corporation in its ability to defend the claim on the merits.

More precisely, we grapple with the distinction between, on the one hand, the knowledge obtained by a public corporation ( see General Municipal Law § 50-e General Construction Law § 66 -) of the 'essential facts constituting the claim,' and, on the other, the knowledge obtained by a public corporation of facts about an accident and the resulting injury that do not amount to the essential facts constituting the claim. Here, we take the opportunity to clarify the standards relevant to the courts' exercise of discretion in deciding these applications, so the outcomes are more predictable and not merely the product of judicial whimsy. Among the 'facts and circumstances' a court must consider in determining an application for permission to serve a late notice of claim are the actual knowledge of the public corporation of the 'essential facts constituting the claim' and the prejudice to the public corporation from a claimant's failure to serve a timely notice of claim (General Municipal Law § 50-e ). An injured person who has failed to serve a timely notice of claim may, pursuant to General Municipal Law § 50-e (5), apply for permission to serve a late notice.

Matter of mccormick v eastport manor constr., 19 ad3d 826, 828 [2005]