| Matter of Melissa G. v North Babylon Union Free SchoolDist. |
| 2008 NY Slip Op 03456 [50 AD3d 901] |
| April 15, 2008 |
| Appellate Division, Second Department |
| In the Matter of Melissa G. et al., Appellants, v NorthBabylon Union Free School District, Respondent. |
—[*1] Donohue, McGahan, Catalano & Belitsis (Congdon, Flaherty, O'Callaghan, Reid, Donlon,Travis & Fishlinger, Uniondale, N.Y. [Kathleen D. Foley] of counsel), for respondent.
In a proceeding pursuant to Education Law § 3813 (2-a) for leave to serve a late noticeof claim, the petitioners appeal from (1) an order of the Supreme Court, Suffolk County(Loughlin, J.), dated April 26, 2006, which denied the petition, and (2) a judgment of the samecourt entered July 12, 2006, which, upon the order, is in favor of the respondent and against themdismissing the proceeding.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is modified, on the law and as an exercise of discretion, bydeleting the provision thereof dismissing that portion of the proceeding which was for leave toserve a late notice of claim on behalf of Melissa G.; as so modified, the judgment is affirmed,that branch of the petition which was for leave to serve a late notice of claim on behalf of MelissaG. is reinstated, and the order is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the petitioners.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment (see Matter of Aho, 39 NY2d 241[1976]). The [*2]issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment (seeCPLR 5501 [a] [1]).
The petitioners commenced this proceeding for leave to serve a late notice of claim againstthe respondent North Babylon Union Free School District (hereinafter the District) on behalf ofthe petitioner Garry G. (hereinafter Garry) in his individual capacity and as parent of the infantpetitioner Melissa G. (hereinafter Melissa). The Supreme Court denied the petition and dismissedthe proceeding.
The Supreme Court correctly denied the petition insofar as it sought leave to serve a latenotice of claim on behalf of Garry, individually. Whether the District is correct or incorrect in itsargument that Garry's application was untimely (see Nardi v County of Westchester, 18 AD3d 521, 522 [2005]), theproposed notice of claim is simply insufficient with respect to any claim by Garry in hisindividual capacity. A notice of claim against a school district must satisfy the requirements ofGeneral Municipal Law § 50-e (see Education Law § 3813). Thoserequirements include statements of both "the nature of the claim" and "the items of damage orinjuries claimed to have been sustained" (General Municipal Law § 50-e [2]). With respectto the individual claim made by Garry, however, the proposed notice of claim specifies neither.As a result, leave to serve it was properly denied.
There are no issues of timeliness or sufficiency, however, with respect to the claims made byGarry on behalf of Melissa, since the statute of limitations as to those claims was tolled by reasonof Melissa's infancy (see CPLR 208; Cohen v Pearl Riv. Union Free School Dist.,51 NY2d 256, 259 [1980]) and the proposed notice sets forth all of the requisite elements ofher claims. The determination to permit the service of a late notice of claim on behalf of Melissais therefore addressed to the discretion of the court (see Education Law § 3813[2-a]; Matter of Alexander v Board ofEduc. for Vil. of Mamaroneck, 18 AD3d 654 [2005]).
In determining whether to permit the service of a late notice of claim against a school district,the court is required to consider, insofar as is relevant here, "whether the district or school or itsattorney or its insurance carrier or other agent acquired actual knowledge of the essential factsconstituting the claim within [three months after the accrual of the claim] or within a reasonabletime thereafter," as well as "all other relevant facts and circumstances, including: whether theclaimant was an infant . . . and whether the delay in serving the notice of claimsubstantially prejudiced the district or school in maintaining its defense on the merits" (EducationLaw § 3813 [2-a]). Upon consideration of these factors in the instant case, the SupremeCourt improvidently exercised its discretion in denying that branch of the petition which was forleave to serve a late notice of claim on behalf of Melissa.
Under the circumstances of this case, the District had sufficient knowledge of the relevantfacts underlying Melissa's claim (see Matter of Kelli A. v Galway Cent. School Dist., 241AD2d 883, 884-885 [1997]; see alsoMatter of Trusso v Board of Educ. of Jamestown City School Dist., 24 AD3d 1302[2005]; Matter of Andrew T.B. vBrewster Cent. School Dist., 18 AD3d 745, 748 [2005]; cf. Matter of Doe vMadrid-Waddington Cent. School Dist., 232 AD2d 922 [1996]). Since the District's actualknowledge of the essential facts constituting the claim enabled it to conduct an appropriateinvestigation, the petitioners also carried their burden of establishing the absence of prejudice tothe District (see Catterson v SuffolkCounty Dept. of Health Servs., 49 AD3d 792 [2008]; Matter of Corvera v Nassau County HealthCare Corp., 38 AD3d 775, 776-777 [2007]; Matter of Vasquez v City of Newburgh, 35 AD3d 621, 623 [2006];Matter of Tapia v New York City Health& Hosps. Corp., 27 AD3d 655, 657 [2006]; Matter of Howe v Village ofTrumansburg, 169 AD2d 1018, 1019 [1991]; cf. Matter of Bordan v Mamaroneck SchoolDist., 230 AD2d 792 [1996]). Finally, Melissa's infancy weighs in favor of granting leave.Although the infancy of the injured party is not, in itself, a reasonable excuse for the failure toserve a timely notice of claim (see Matter of Vasquez v City of Newburgh, 35 AD3d at623; Matter of Soto v Brentwood Union Free School Dist., 296 AD2d 552 [2002];Matter of Knightner v City of New York, 269 AD2d 397 [2000]), it is a factor that thecourt must consider (see Williams vNassau County Med. Ctr., 6 NY3d 531, 538 [2006]).
Thus, balancing the factors that must be considered, that branch of the petition which was forleave to serve a late notice of claim on behalf of Melissa should have been granted. Rivera, J.P.,Spolzino, Carni and McCarthy, JJ., concur.