STATE OF NEW YORK
SUPREME COURT : COUNTY OF CHAUTAUQUA
IN THE MATTER OF THE CLAIM OF SHIRLEY
DIETZ, AS PARENT AND NATURAL GUARDIAN OF
SCOTT FROST; DAVID M. FOSTER AND TRUDY A.
FOSTER, AS PARENTS AND NATURAL GUARDIANS
OF MARK R. FOSTER; HAROLD PANGBORN AND
LOUANN PANGBORN, AS PARENTS AND NATURAL
GUARDIANS OF AMANDA LEE PANGBORN;
EVELYN STEWART, AS PARENT AND NATURAL
GUARDIAN OF NICOLE D. HUNTER,
-vs- Index #H10827
JAMESTOWN PUBLIC SCHOOLS,
ALLEN, LIPPES & SHONN
(Pamela L. Newbeck, Esq.
of Counsel) for Plaintiffs
HODGSON, RUSS, ANDREWS,
WOODS & GOODYEAR (Suzanne
P. Stern, Esq. of Counsel)
DECISION AND ORDER
Plaintiffs seek leave to file a late notice of claim
against defendant. The claims arise out of renovations made
during the fall of 1992 to Jefferson Middle School allegedly
exposing students to toxic substances.
After oral argument, plaintiffs were allowed to make
additional submissions on paper. After receiving the
submissions, it is the decision of the Court that it can now
grant the motion. The original papers offered no justifiable
excuse for the delay. Furthermore, the delay was not related
to infancy. The excuse offered was that the plaintiffs and
their attorney were gathering facts. It did not say what
those facts were or when they were "gathered." The papers
were vague about the various dates of possible injury, the
manner in which the claim arose and the damages suffered,
when an attorney was first consulted or the parties first
knew of the chemical exposure.
The new affidavits are much more detailed in keeping
with the requirements of General Municipal Law 50-e(2).
There are still possible statute of limitations
issues, problems in that the delay has not been due to
infancy, but, in light of the most recent Fourth Department
pronouncements in this area, the Court must grant the motion.
The Fourth Department seems to be moving away from its
earlier position and in a different direction from the other
Departments where a fairly strict standard is applied in that
the delay MUST be due to infancy. See WETZEL SERVICES V
AMHERST, 207 AD2d 965, WOODS V GENEVA, 621 NYS2d 816, both
recent 4th Department opinions.
The other Departments in such cases as LEIBLEIN V CLARK,
207 AD2d 348, HUBBARD, 204 AD2d 721, and ZEE, 622 NYS2d 279,
have held it is an abuse of discretion to allow a late claim
when lateness is not due to infancy.
While this Court still is of the opinion that the excuse
offered for delay has neither merit or been substantiated,
there does appear to be no prejudice to the school since they
knew right along that these children were having problems and
learned of the chemical problems either simultaneously or
sooner that the plaintiffs. Other claims have already been
brought by other students who suffered similar problems.
Where there is no prejudice to the school, COHEN V PEARL
RIVER UNION FREE SCHOOL DISTRICT, 51 NY2d 256, would justify
the Court's exercise of discretion in favor of the infant.
From the earlier claims, the school has an abundance of
medical information from students and staff with similar
symptoms and the situation has been thoroughly investigated
Furthermore, if and when the case is placed in suit, the
school can implead the many construction and supply firms,
architects and others who were involved with the renovations.
The school is in a much better position than the students to
identify which party or parties may be responsible.
The motion to file a late claim is granted on behalf of the infants only, without costs. The order is not intended to apply to any derivative claim of any of the parents.
Dated: August 3, 1995
Mayville, New York
Justice of Supreme Court