Hamberger & Weiss LLP


Appellate Division Reminds Board that Excusal of Late Notice is Discretionary

On 9/6/18, the Appellate Division, Third Department, decided Taylor v. Little Angels Head Start. This case involved a carrier’s defense against a claim based on untimely notice. It is well known that there are many reasons the Board may invoke to excuse a claimant’s failure to provide timely notice, and the Board regularly does so. Nonetheless, the Court here highlighted the fact that excusing untimely notice is discretionary. The Court stated, “The Board is not required to excuse a claimant’s failure to give timely written notice even if [a ground for excusal] is proven; the matter rests within the Board’s discretion.” As such, even when the record contains evidence allowing for excusal of untimely notice, an argument can be made in appropriate cases that the Board should decline to exercise its discretion to do so.

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