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,

Plaintiffs,

-vs- Index #H10827

JAMESTOWN PUBLIC SCHOOLS,

Defendant.

ALLEN, LIPPES & SHONN

(Pamela L. Newbeck, Esq.

of Counsel) for Plaintiffs

HODGSON, RUSS, ANDREWS,

WOODS & GOODYEAR (Suzanne

P. Stern, Esq. of Counsel)

for Defendants

DECISION AND ORDER

GERACE, J.

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

by experts.

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

JOSEPH GERACE

Justice of Supreme Court