| Matter of Formisano v Eastchester Union Free School Dist. |
| 2009 NY Slip Op 01118 [59 AD3d 543] |
| February 10, 2009 |
| Appellate Division, Second Department |
| In the Matter of John-Michael Formisano,Respondent, v Eastchester Union Free School District,Appellants. |
—[*1] Hannaway & Curwood, White Plains, N.Y. (James M. Curwood of counsel), forrespondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the appeal is from an order of the Supreme Court, Westchester County (Nastasi,J.), entered June 18, 2008, which granted the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the petition is denied.
Nearly six years after the then 12-year-old petitioner sustained a fractured nose at a SpringDance sponsored by the Eastchester Middle School and held in the school gymnasium, hecommenced this proceeding for leave to serve a late notice of claim. The Supreme Court grantedthe petition. We reverse.
Factors to be considered in determining if a petitioner should be granted leave to serve a latenotice of claim are whether (1) the public corporation (or its attorney or insurance carrier)acquired actual knowledge of the essential facts constituting the claim within 90 days of theincident or a reasonable time thereafter, (2) the petitioner was an infant at the time the claimarose and, if so, whether there was a nexus between the petitioner's infancy and the delay inservice of a notice of claim, (3) the petitioner had a reasonable excuse for the delay, and (4) thepublic corporation was prejudiced by the delay (see Williams v Nassau County Med. Ctr., 6 NY3d 531 [2006]; Lucero v New York City Health & Hosps.Corp. [Elmhurst Hosp. Ctr.], 33 AD3d 977 [2006]).[*2]
Here, the principal excuse offered for the late filing was afear, the source of which was unspecified, of some possible retaliation against the petitioner bythe school authorities and teachers should a claim be filed. This excuse is both unreasonable andunrelated to the petitioner's infancy (see Doukas v East Meadow Union Free SchoolDist., 187 AD2d 552, 553 [1992]).
Moreover, the record does not support the petitioner's contention that the appellants obtainedknowledge of the essential facts constituting the claim within 90 days of the occurrence.Although it is undisputed that the appellants were aware of the incident and the petitioner'sinjury, the petitioner did not show that the appellants were aware of the facts underlying theclaim (see Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d 138, 147-148 [2008]). The reportgiven to the school principal by the student government faculty advisors who were present in thegym stated little more than that, almost immediately after the overhead light was turned off, thepetitioner came out of the gym with a bloody nose. Moreover, whereas the petitioner's proposednotice of claim asserts that, after the light went off, some students began to engage in dangerousconduct known as moshing, knocking him to the floor where he was violently kicked in the face,the petitioner did not show that the appellants were aware of these facts within 90 days after theincident or within a reasonable time thereafter. Notably, the Eastchester Ambulance Corp.incident report states that the petitioner said at the time that, "while attending a dance at schoolhe was laying on floor doing a dance maneuver and got kicked."
Finally, on the issue of prejudice, the petitioner bears the burden of establishing that theappellants would not be substantially prejudiced in their defense on the merits should leave begranted (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at152). The appellants here assert that they would be prejudiced by the six-year delay in that thewitnesses' memories have faded, students involved are no longer available, and many of theteachers and administrators, including the principal, are no longer in the employ of the appellantEastchester Union Free School District. The petitioner did not establish that these assertions areinaccurate or that the appellants will otherwise not be prejudiced by the delay. Under thesecircumstances, the Supreme Court improvidently exercised its discretion in granting the petition(see Matter of Termini v Valley StreamUnion Free School Dist. No. 13, 2 AD3d 866 [2003]). Mastro, J.P., Fisher, Florio, Carniand Eng, JJ., concur.