| Matter of Jantzen v Half Hollow Hills Cent. School Dist. No.5 |
| 2008 NY Slip Op 08489 [56 AD3d 474] |
| November 5, 2008 |
| Appellate Division, Second Department |
| In the Matter of James Jantzen, Respondent, v Half HollowHills Central School District No. 5, Appellant, et al., Respondent. |
—[*1] Steven Cohn, P.C., Carle Place, N.Y. (Alan S. Zigman of counsel), forplaintiff-respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, Half Hollow Hills Central School District No. 5 appeals from so much of anorder of the Supreme Court, Suffolk County (Pitts, J.), dated February 25, 2008, as granted thatbranch of the petition which was for leave to serve a late notice of claim upon it.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, with costs, and that branch of the petition which was for leave to serve a late notice ofclaim upon Half Hollow Hills Central School District No. 5 is denied.
The Supreme Court improvidently exercised its discretion in granting that branch of thepetition which was for leave to serve a late notice of claim upon the appellant. In support of hispetition, the petitioner submitted his mother's affidavit, which alleged that she provided "detailedinformation concerning what had transpired" to the school nurse within a week after thepetitioner was injured during a wrestling scrimmage. This statement was insufficient to establishthat the appellant acquired, within 90 days or a [*2]reasonabletime after the accident, actual knowledge of the essential facts constituting the present claim thatthe appellant was negligent in supervising or positioning the members of the wrestling teamduring the scrimmage (see Matter ofScolo v Central Islip Union Free School Dist., 40 AD3d 1104 [2007]; Matter of Padovano v Massapequa UnionFree School Dist., 31 AD3d 563 [2006]; Matter of Scott v Huntington Union Free School Dist., 29 AD3d1010, 1011 [2006]; Conte v ValleyStream Cent. High School Dist., 23 AD3d 328 [2005]; Matter of del Carmen v Brentwood UnionFree School Dist., 7 AD3d 620, 621 [2004]; Matter of Ryder v Garden City SchoolDist., 277 AD2d 388, 389 [2000]).
Further, even if this Court were to excuse the petitioner's initial delay of one year and eightmonths in serving a notice of claim based upon his assertions that he was unaware of the severityof his left elbow injury (see Matter ofHursala v Seaford Middle School, 46 AD3d 892, 893 [2007]; Matter of Vitale v Elwood Union FreeSchool Dist., 19 AD3d 610 [2005]), the petitioner offered no valid excuse for theadditional delay of one year and five months that ensued before commencing a proceeding forleave to serve a late notice of claim (seeMatter of Scott v Huntington Union Free School Dist., 29 AD3d 1010 [2006]; Matter of del Carmen v Brentwood UnionFree School Dist., 7 AD3d 620, 621 [2004]).
The petitioner also failed to satisfy his burden of establishing that the appellant would not besubstantially prejudiced in maintaining its defense on the merits as a result of his delay in seekingleave to serve a late notice of claim (seeMatter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 152 [2008];Jordan v City of New York, 41AD3d 658 [2007]; Matter ofDumancela v New York City Health & Hosps. Corp., 32 AD3d 515, 516 [2006]).Skelos, J.P., Ritter, Dillon, Carni and Leventhal, JJ., concur.