| Matter of Monfort v Rockville Ctr. Union Free School Dist. |
| 2008 NY Slip Op 08494 [56 AD3d 480] |
| November 5, 2008 |
| Appellate Division, Second Department |
| In the Matter of Elizabeth Monfort,Respondent, v Rockville Centre Union Free School District,Appellant. |
—[*1] Thomas F. Liotti, Garden City, N.Y. (Edward A. Paltzik of counsel), forrespondent.
In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a latenotice of claim upon the Rockville Centre Union Free School District, the appeal is from anorder of the Supreme Court, Nassau County (Adams, J.), dated November 7, 2007, which grantedthe petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the petition is denied.
On March 30, 2007 the infant petitioner was running "laps around the track" during thecourse of a girls' varsity lacrosse team practice at South Side High School in Rockville Centre,when she was "blind-sided by a flying discus." She alleges that the discus was thrown by amember of the boys' junior varsity lacrosse team, and she is seeking to impose liability upon theRockville Centre Union Free School District (hereinafter the District) based, in essence, on atheory of inadequate supervision. The Supreme Court granted her petition for permission to servea late notice of claim upon the District. We reverse.
In support of the petition, the infant petitioner failed to submit her own affidavit or otherverified pleading, despite the fact that she would presumably have been able to offer informationwith respect to exactly when her coach, or some other employee of the high school or of theDistrict, first became aware [*2]of the injury to her nose causedby the discus. Rather, she submitted only her attorney's affirmation, in which the attorney mademerely conclusory allegations to the effect that the District had been on notice of the March 30,2007 incident "since it occurred." Moreover, the petition was not supported by any othertestimonial or documentary evidence establishing that the District obtained notice of the essentialfacts of the claim within 90 days of the accident or a reasonable time thereafter, and counsel'suncorroborated assertions are no substitute for evidence (see e.g. Zuckerman v City of NewYork, 49 NY2d 557, 563 [1980]). The "bare affirmation of [an] attorney . . .[is] without evidentiary value" (Feratovic v Lun Wah, Inc., 284 AD2d 368, 368 [2001]).
While we acknowledge that "[n]either the presence nor the absence of any one factor isdeterminative" (Catterson v SuffolkCounty Dept. of Health Servs., 49 AD3d 792, 794 [2008]) in determining a petition forleave to serve a late notice of claim, there is no proof here that, within the 90 day postaccidentperiod or within a reasonable time thereafter, the District received any notice that the infantpetitioner had been injured (see Matterof Kumar v City of New York, 52 AD3d 517 [2008]; cf. Matter of McLean v Valley StreamUnion Free School Dist. 30, 48 AD3d 571 [2008]), much less that it had received noticeof the "facts that underlie the legal theory . . . on which liability is predicated in thenotice of claim" (Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d 138, 148 [2008]). After considering"all [the] relevant facts and circumstances" (General Municipal Law § 50-e [5]), includingthose specifically enumerated in the statute, we conclude that it was an improvident exercise ofdiscretion for the Supreme Court to have granted the petition for permission to serve a late noticeof claim. Florio, J.P., Angiolillo, McCarthy and Chambers, JJ., concur.