| Matter of Leeds v Port Washington Union Free School Dist. |
| 2008 NY Slip Op 07914 [55 AD3d 734] |
| October 14, 2008 |
| Appellate Division, Second Department |
| In the Matter of Paige Leeds et al., Respondents, v PortWashington Union Free School District, Appellant. |
—[*1] Dell & Little, LLP, Uniondale, N.Y. (Keri A. Wehrheim of counsel), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim upon the Port Washington Union Free School District, the Port Washington Union FreeSchool District appeals from an order of the Supreme Court, Nassau County (McCormack, J.), datedNovember 28, 2007, which granted the petition.
Ordered, that the order is affirmed, with costs.
To commence a tort action against a municipality or school district, General Municipal Law§ 50-e (1) (a) requires a claimant to serve a notice of claim upon that municipality or schooldistrict within 90 days of the date that the claim arose (see Jordan v City of New York, 41 AD3d 658, 659 [2007]). Pursuantto General Municipal Law § 50-e (5), the court may, in its discretion, extend the time to serve anotice of claim (see Williams v NassauCounty Med. Ctr., 6 NY3d 531, 535 [2006]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d138 [2008]; Matter of Lodati v City of New York, 303 AD2d 406, 406-407 [2003]). Indetermining whether or not to grant leave to serve a late notice of claim, a court must consider: (1)whether the public corporation acquired actual knowledge of the essential facts constituting the claimwithin 90 days after the claim arose or within a reasonable time thereafter; (2) whether the petitionerwas an infant or mentally or physically incapacitated; (3) whether the petitioner had a reasonable excusefor the failure to serve a timely notice of claim; and (4) whether the delay would substantially prejudicethe public corporation in maintaining its defense (see General Municipal Law § 50-e [5];Matter of Melissa G. v North Babylon UnionFree School Dist., 50 AD3d 901 [2008]; Jordan v City of New York, 41 AD3d at659; Matter of Lodati v [*2]City of New York, 303 AD2d at407). The presence or absence of any one of these factors is not necessarily determinative (seeMatter of Dell'Italia v Long Is. R.R. Corp., 31 AD3d 758, 759 [2006]; Salvaggio v WesternRegional Off-Track Betting Corp., 203 AD2d 938, 939 [1994]), and the absence of a reasonableexcuse is not necessarily fatal (see Jordan vCity of New York, 41 AD3d 658, 659 [2007]; Matter of March v Town of Wappinger, 29 AD3d 998, 999 [2006])."However, whether the public corporation acquired timely actual knowledge of the essential factsconstituting the claim is seen as 'a factor which should be accorded great weight' " (Matter ofDell'Italia v Long Is. R.R. Corp., 31 AD3d 758, 759 [2006], quoting Matter of Morris vCounty of Suffolk, 88 AD2d 956, 956 [1982], affd 58 NY2d 767 [1982]; see Matterof Battle v City of New York, 261 AD2d 614, 615 [1999]). "In order to have actual knowledgeof the essential facts constituting the claim, the public corporation must have knowledge of the facts thatunderlie the legal theory or theories on which liability is predicated in the notice of claim; the publiccorporation need not have specific notice of the theory or theories themselves" (Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d at 148).
Under the circumstances of this case, the Supreme Court providently exercised its discretion ingranting the petition pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim. The record clearly indicates that the appellant received timely actual notice of theessential facts constituting the claim within the 90-day statutory period, or within a reasonable timethereafter (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at149-150). Immediately following the occurrence of the incident, the actions taken by the appellant'semployees placed it on notice of the infant petitioner's accident and any potential claim that might arisetherefrom. In particular, the appellant's employee witnessed the infant petitioner's accident, whichoccurred on a sanctioned school field trip, and prepared a student incident report within 24 hours of theaccident. In addition, the school's principal, also an employee of the appellant, reviewed the studentincident report within two days of the accident, and, due to the injuries sustained by the infant petitioner,the principal provided the petitioners with a medical claim form within four days of the accident (see Gibbs v City of New York, 22 AD3d717, 719 [2005]; Matter of Schiffman vCity of New York, 19 AD3d 206, 207 [2005]; Ayala v City of New York, 189AD2d 632, 633 [1993]; see also Matter ofVasquez v City of Newburgh, 35 AD3d 621, 623 [2006]).
Furthermore, by demonstrating that the appellant acquired timely knowledge of the essential factsof the claim, the petitioners met their initial burden of establishing a lack of substantial prejudice to theappellant should late service of the notice of claim be allowed (see Jordan v City of New York,41 AD3d at 660; Gibbs v City of NewYork, 22 AD3d 717, 719 [2005]; Matter of Schiffman v City of New York, 19AD3d at 207; see also Williams v Nassau County Med. Ctr., 6 NY3d at 539). The appellant'sconclusory assertion that it will be unable to investigate the petitioners' claim due to the passage of timewas insufficient to overcome the petitioners' showing of a lack of substantial prejudice (see Jordan vCity of New York, 41 AD3d at 660; Gibbs v City of New York, 22 AD3d at 720). Theabsence of a reasonable excuse for the delay does not bar the court from granting leave to serve a latenotice of claim, since here, there is actual notice and an absence of prejudice (see Matter of Rivera-Guallpa v County ofNassau, 40 AD3d 1001, 1002 [2007]; Gibbs v City of New York, 22 AD3d 717, 720 [2005]; Montero v New York City Health & Hosps.Corp., 17 AD3d 550, 550-551 [2005]; Matter of Hendershot v Westchester Med. Ctr., 8 AD3d 381, 382[2004]).
Accordingly, the Supreme Court providently exercised its discretion in granting the petition. Skelos,J.P., Ritter, Florio and Dickerson, JJ., concur.