| Grogan v Seaford Union Free School Dist. |
| 2009 NY Slip Op 01197 [59 AD3d 596] |
| February 17, 2009 |
| Appellate Division, Second Department |
| Matthew Grogan et al., Appellants, v Seaford Union FreeSchool District, Respondent, et al., Defendants. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Christine Gasser of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Nassau County (Palmieri, J.), dated December 20, 2007, which grantedthe motion of the defendant Seaford Union Free School District to dismiss the complaint, interalia, for failure to serve a timely notice of claim, and denied their cross motion for leave to servea late notice of claim.
Ordered that the order is affirmed, with costs.
In order to commence a tort action against a school district, a claimant must serve a notice ofclaim within 90 days of the alleged injury (see Education Law § 3813 [2]; GeneralMunicipal Law § 50-e [1] [a]; § 50-i [1]; Forrest v Berlin Cent. School Dist., 29 AD3d 1230 [2006]).Pursuant to General Municipal Law § 50-e (5), the court may, in its discretion, extend thetime to serve a notice of claim (seeMatter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138 [2008]),after considering "whether the movant demonstrated a reasonable excuse for the failure to servea timely notice of claim, whether the municipality acquired actual notice of the essential facts ofthe claim within 90 days after the claim arose or a reasonable time thereafter, and whether thedelay would substantially prejudice the municipality in its defense" (Matter of Valestil v Cityof New York, 295 AD2d 619 [2002]; see General Municipal Law § 50-e [5];Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138 [2008]).[*2]
Applying these principles to the matter at bar, theSupreme Court providently exercised its discretion in denying the plaintiffs' belated applicationfor leave to serve a late notice of claim (see Matter of Alexander v Board of Educ. for Vil. of Mamaroneck, 18AD3d 654, 655 [2005]). Not only did the plaintiffs fail to satisfy their burden to show thatthe defendant school district acquired timely, actual knowledge of the essential facts constitutingtheir claims, they did not offer a reasonable excuse for the delay in seeking leave to serve a latenotice of claim (see Matter of Vicari vGrand Ave. Middle School, 52 AD3d 838, 838-839 [2008]). The infancy of one of theplaintiffs, without any showing of a nexus between the infancy and the delay, was insufficient toconstitute a reasonable excuse (seeMatter of Lennon v Roosevelt Union Free School Dist., 6 AD3d 713, 714 [2004]).
Further, the plaintiffs failed to establish that the school district would not be substantiallyprejudiced in maintaining its defense on the merits at this late juncture (see Matter of Padovano v MassapequaUnion Free School Dist., 31 AD3d 563, 564 [2006]; Matter of Flores v County of Nassau, 8 AD3d 377 [2004]).
The plaintiffs' remaining contentions are without merit. Skelos, J.P., Santucci, Balkin andEng, JJ., concur. [See 18 Misc 3d 1112(A), 2007 NY Slip Op 52502(U).]