| Matter of Petersen v Susquehanna Val. Cent. School Dist. |
| 2008 NY Slip Op 10241 [57 AD3d 1332] |
| December 31, 2008 |
| Appellate Division, Third Department |
| In the Matter of Kristen Petersen, Appellant, v Susquehanna ValleyCentral School District, Respondent. |
—[*1] Costello, Cooney & Fearon, P.L.L.C., Syracuse (Donald S. DiBenedetto of counsel), forrespondent.
Carpinello, J. Appeal from an order of the Supreme Court (Lebous, J.), entered February 22,2008 in Broome County, which denied petitioner's motion pursuant to General Municipal Law §50-e (5) for leave to file a late notice of claim.
On February 15, 2007, petitioner, a senior at the Susquehanna Valley High School, was injuredwhen another student pulled her chair out from under her while she was eating lunch in the cafeteria.She then went to the school nurse and, without reporting the incident, complained that her back wasbothering her and went home early. Later that day, petitioner's mother contacted the school nurse toexplain what happened and an accident report was completed. Thereafter, in October 2007, petitionermade an application for permission to file a late notice of claim upon respondent alleging, among otherthings, that her injuries were the result of respondent's negligent supervision of the students in thecafeteria. Supreme Court denied this application and petitioner now appeals.
We affirm. "The decision [of whether] to permit the late filing of a notice of claim pursuant toGeneral Municipal Law § 50-e (5) is committed to the discretion of the trial court" (Matter of Dewey v Town of Colonie, 54AD3d 1142, 1142 [2008]; see Matterof Heffelfinger v [*2]Albany Intl. Airport, 43 AD3d 537, 538[2007]). In exercising this discretion, " 'the trial court must consider certain statutory factors, includingwhether the respondent had actual knowledge of the essential facts constituting the claim, whether thereexists a reasonable excuse for any delay in filing the notice of claim and whether the delay has causedsubstantial prejudice to any defense to the claim' " (Matter of Dewey v Town of Colonie, 54AD3d at 1142, quoting Matter of Apgar vWaverly Cent. School Dist., 36 AD3d 1113, 1114 [2007]; see General MunicipalLaw § 50-e [5]; Education Law § 3813 [2-a]; Matter of Heffelfinger v Albany Intl.Airport, 43 AD3d at 538). "No one factor . . . is dispositive of the issue" (Matterof Dewey v Town of Colonie, 54 AD3d at 1143; see Matter of Welch v Board of Educ. ofSaratoga Cent. School Dist., 287 AD2d 761, 762-763 [2001]).
Here, although the accident report establishes respondent's knowledge that petitioner was injuredin February 2007 when "[she] was in lunch and another student pulled her chair out from [under] her,"respondent was not made aware of petitioner's claim that the injuries resulted from its negligentsupervision of the students in the cafeteria until this application was made in October 2007. Under thesecircumstances, petitioner failed to establish that respondent had actual knowledge of the essential factsconstituting the claim (see Pryor v Serrano, 305 AD2d 717, 719 [2003]; De Jesus vCounty of Albany, 267 AD2d 649, 650 [1999]; Matter of Messere v Fink, 240 AD2d811, 811-812 [1997]; see also Matter ofVicari v Grand Ave. Middle School, 52 AD3d 838, 839 [2008]). Further, petitioner failed toproffer any excuse for her delay in filing the notice of claim and, to the extent that this incident occurredin a cafeteria allegedly unsupervised by adults and used only by seniors—all of whom hadpresumably graduated by October 2007—respondent arguably suffered substantial prejudicewith respect to its opportunity to promptly and thoroughly investigate the incident. Under thesecircumstances, we are unable to conclude that Supreme Court abused its discretion in denyingpetitioner's application.
Cardona, P.J., Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.