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Matter of A.C. v West Babylon
Union Free Sch. Dist.
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2017 NY Slip Op 01351 [147 AD3d
1047]
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February 22, 2017
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Appellate Division, Second
Department
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Published by New
York State Law Reporting Bureau pursuant to Judiciary Law §
431.
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As corrected through Wednesday,
March 29, 2017
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[*1]
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In the Matter of A.C. et al.,
Respondents,
v West Babylon Union Free School District, Appellant. |
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis &
Fishlinger, Uniondale, NY (Kathleen D. Foley of counsel), for appellant.
Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C.,
Mineola, NY (James R. Baez of counsel), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for
leave to serve a late notice of claim or to deem a late notice of claim timely
served nunc pro tunc, West Babylon Union Free School District appeals from an
order of the Supreme Court, Suffolk County (Gazzillo, J.), dated October 5,
2015, which granted the petition.
Ordered that the order is reversed, on the facts and in the
exercise of discretion, with costs, the petition is denied, and the proceeding
is dismissed.
Service of a notice of claim within 90 days after accrual of the
claim is a condition precedent to commencing an action against a school
district (see Education Law § 3813 [2]; General Municipal Law
§ 50-e [1] [a]; Matter of Doyle v Elwood Union Free
School Dist., 39 AD3d 544, 545
[2007]). In determining whether to grant leave to serve a late notice of claim
or to deem a late notice of claim timely served nunc pro tunc, the court must
consider whether (1) the school district acquired actual knowledge of the
essential facts constituting the claim within 90 days after the claim arose or
a reasonable time thereafter, (2) the injured child was an infant at the time
the claim arose and, if so, whether there was a nexus between the infancy and
the failure to serve a timely notice of claim, (3) the petitioner demonstrated
a reasonable excuse for the failure to serve a timely notice of claim, and (4)
the school district was substantially prejudiced by the delay in its ability to
maintain its defense on the merits (see Education Law § 3813 [2-a];
General Municipal Law § 50-e [5]; Williams v Nassau County Med. Ctr., 6 NY3d 531, 535 [2006]; Matter of Felice v Eastport/South
Manor Cent. School Dist., 50 AD3d 138,
148 [2008]). The first of these factors, actual knowledge of the essential
facts underlying the claim, is the most important (see Matter of Felice v
Eastport/South Manor Cent. School Dist., 50 AD3d at 148). Actual knowledge
of the essential facts underlying the claim means "knowledge of the facts
that underlie the legal theory or theories on which liability is predicated in
the [proposed] notice of claim; the public corporation need not have specific
notice of the theory or theories themselves" (id.).
Here, the petitioners failed to show that the appellant obtained
actual knowledge of the essential facts constituting the claim within 90 days
after the incident or a reasonable time [*2]thereafter. While a
medical claim form was prepared during the week of the incident and signed by
the principal or a designated school authority, this form, which merely
indicated that the infant petitioner was injured when another student collided
into her during recess, did not provide the appellant with actual knowledge of
the essential facts underlying the claim that the appellant, inter alia, failed
to properly monitor and supervise the students during school recess (see Matter of Sparrow v
Hewlett-Woodmere Union Free Sch. Dist. [#14],
110 AD3d 905, 907 [2013]; Matter of Felice v Eastport/South
Manor Cent. School Dist., 50 AD3d at 149-150).
Moreover, the petitioners did not demonstrate a reasonable excuse
for the failure to serve a timely notice of claim and for the delay in filing
the petition (see Matter of Hampson v Connetquot
Cent. Sch. Dist., 114 AD3d 790,
791 [2014]). While the injured person here is an infant, the failure to serve a
timely notice of claim and the delay in seeking leave to serve a late notice of
claim were not the product of the infant petitioner's infancy (see Matter of
Sparrow v Hewlett-Woodmere Union Free Sch. Dist. [#14], 110 AD3d at 906).
Furthermore, the infant petitioner's mother failed to submit any evidence to
support her allegations that the delay was attributable to the fact that she
was more concerned about dealing with her daughter's alleged injuries than with
retaining an attorney (see Matter of Hampson v Connetquot Cent. Sch. Dist.,
114 AD3d at 791).
Finally, as to the issue of substantial prejudice, the petitioners
presented no "evidence or plausible argument" that their delay in
serving a notice of claim did not substantially prejudice the appellant in
defending on the merits (Matter of Newcomb v Middle Country
Cent. Sch. Dist., 28 NY3d 455,
466 [2016]; see Matter of Sparrow v Hewlett-Woodmere Union Free Sch.
Dist. [#14], 110 AD3d at 907; Matter of Felice v Eastport/South
Manor Cent. School Dist., 50 AD3d at 152-153). The petitioners contend that
the appellant has not been substantially prejudiced in its defense because the
condition of the accident location has not changed. The condition of the
accident location is irrelevant, however, to the petitioners' claim of
negligence—that the appellant was negligent in its supervision of students
during a noon recess—and, thus, to the issue of substantial prejudice as well.
The petitioners also assert that there were no known witnesses to the incident
and, therefore, their delay in filing a notice of claim did not substantially
prejudice the appellant in its ability to investigate. This contention runs
counter to the petitioners' allegation that the incident, a collision between
the infant petitioner and another student, occurred during a group activity.
Lastly, the petitioners contend that the availability of records as to the
infant petitioner's injuries establishes a lack of substantial prejudice. The
medical records, however relevant to the issue of damages, have little, if
anything, to do with the appellant's ability to conduct an investigation as to
its liability (see Matter of Sparrow v Hewlett-Woodmere Union Free Sch.
Dist. [#14], 110 AD3d at 907; Matter of Castro v Clarkstown Cent.
School Dist., 65 AD3d 1141, 1142
[2009]; cf. Matter of Allende v City of New
York, 69 AD3d 931, 932-933
[2010]). Thus, their availability does not support the petitioners' argument
that the appellant has not been substantially prejudiced. Inasmuch as the
petitioners failed to present any evidence or plausible argument that the
appellant has not been substantially prejudiced by the delay, the appellant
never became required to make "a particularized evidentiary showing"
that they were substantially prejudiced (Matter of Newcomb v Middle Country
Cent. Sch. Dist., 28 NY3d at 467).
Accordingly, the Supreme Court should have denied the petition and
dismissed the proceeding. Balkin, J.P., Chambers, Roman, Duffy and Barros, JJ.,
concur.
