| Matter of Korman v Bellmore Pub. Schools |
| 2009 NY Slip Op 04065 [62 AD3d 882] |
| May 19, 2009 |
| Appellate Division, Second Department |
| In the Matter of Marshal R. Korman,Appellant, v Bellmore Public Schools, Respondent. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Gregory A. Cascino of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioner appeals (1) from an order of the Supreme Court, Nassau County(LaMarca, J.), entered January 14, 2008, which denied the petition, and (2), as limited by hisbrief, from stated portions of a judgment of the same court dated January 6, 2009, which, interalia, upon the order entered January 14, 2008, and upon an order of the same court enteredSeptember 15, 2008, among other things, denying that branch of the petitioner's motion whichwas for leave to renew the petition, dismissed the proceeding.
Ordered that the appeal from the order entered January 14, 2008, is dismissed; and it isfurther,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The appeal from the intermediate order entered January 14, 2008, must be dismissed becausethe right of direct appeal therefrom terminated with the entry of judgment in the action (seeMatter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from that orderare brought up for review and have been [*2]considered on theappeal from the judgment (see CPLR 5501 [a] [1]).
On May 25, 2006 the petitioner allegedly injured his right shoulder when he fell from thesteps in the auditorium of the respondent's school while attending a school play. More than oneyear after the accident, the petitioner commenced this proceeding for leave to serve a late noticeof claim. The Supreme Court denied the petition. Thereafter, the petitioner moved, inter alia, forleave to renew the petition. The Supreme Court, among other things, denied that branch of themotion which was for leave to renew, and dismissed the proceeding.
The Supreme Court providently exercised its discretion in denying the petition. Indetermining whether to grant leave to serve a late notice of claim, the court must consider certainfactors, including, inter alia, whether the petitioner demonstrated a reasonable excuse for failingto serve a timely notice of claim, whether the public corporation acquired actual knowledge ofthe essential facts constituting the claim within 90 days of its accrual or a reasonable timethereafter, and whether the public corporation was substantially prejudiced by the delay (seeGeneral Municipal Law § 50-e [5]; Matter of Kumar v City of New York, 52 AD3d 517 [2008]; Matter of Felice v Eastport/South ManorCent. School Dist., 50 AD3d 138, 148 [2008]; Matter of Rennell S. v North Jr. High School, 12 AD3d 518[2004]).
The petitioner failed to demonstrate a reasonable excuse for the 10½-month delay incommencing this proceeding. The magnetic resonance imaging report submitted by the petitionerin support of his petition failed to demonstrate that his shoulder injury rendered himincapacitated or disabled to such an extent that he could not have complied with the statutoryrequirement to serve a timely notice of claim (see Matter of Kumar v City of New York,52 AD3d at 518; Matter of Portnovv City of Glen Cove, 50 AD3d 1041, 1042-1043 [2008]; Matter of Nunes v City ofNew York, 233 AD2d 399, 400 [1996]).
Furthermore, there is no proof in the record that, within the 90-day post-accident period orwithin a reasonable time thereafter, the respondent received notice of the "facts that underlie thelegal theory . . . on which liability is predicated in the notice of claim" (Matterof Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 148; see Matter of Monfort v Rockville Ctr.Union Free School Dist., 56 AD3d 480, 481 [2008]; Matter of Kumar v City of NewYork, 52 AD3d at 518). While the petitioner's letter to the school's principal one day afterthe accident indicated that he fell from the top of the auditorium steps, it failed to apprise theschool of the petitioner's injury or of his present contention that the steps, inter alia, werenegligently installed or repaired. Moreover, the school's principal and nurse submitted affidavitsexplicitly contradicting the petitioner's allegation that, due to conversations he had with them,they were aware of "the defect which caused [him] to fall." Finally, because the petitioner's letterand conversations with school personnel did not give the respondent a reason to conduct aprompt investigation into its alleged negligence, it would be prejudiced if it were compelled toprepare a defense to the claim at this late date (see Matter of Scolo v Central Islip Union Free School Dist., 40 AD3d1104 [2007]; Corrales v Middle Country Cent. School Dist., 307 AD2d 907 [2003];Matter of Price v Board of Educ. of City of Yonkers, 300 AD2d 310 [2002]).
The Supreme Court properly denied that branch of the petitioner's motion which was forleave to renew his original petition. A motion for leave to renew must be "based upon new facts[which were] not offered on the prior motion [or proceeding] . . . that would changethe prior determination" (CPLR 2221 [e]), and the party seeking renewal must provide a"reasonable justification for [his or her] failure to present such facts on the [*3]prior motion [or proceeding]" (id.; see Elder v Elder, 21 AD3d 1055[2005]; Matter of ProgressiveNortheastern Ins. Co. v Frenkel, 8 AD3d 390, 391 [2004]; Matter of BrooklynWelding Corp. v Chin, 236 AD2d 392 [1997]). The petitioner did not proffer anyjustification for failing to present certain facts known to him at the time the original petition wassubmitted and the other facts upon which he now relies would not change the outcome of theproceeding in any event (see CPLR 2221 [e]; Elder v Elder, 21 AD3d at 1056).Spolzino, J.P., Santucci, Angiolillo, Leventhal and Lott, JJ., concur.