| Matter of Castro v Clarkstown Cent. School Dist. |
| 2009 NY Slip Op 06546 [65 AD3d 1141] |
| September 15, 2009 |
| Appellate Division, Second Department |
| In the Matter of Ceni Castro, on Behalf of Kevin Sanabria,Respondent, v Clarkstown Central School District et al., Appellants, et al.,Respondent. |
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In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, Clarkstown Central School District and Woodglen Elementary appeal from anorder of the Supreme Court, Rockland County (Berliner, J.), dated October 17, 2008, whichgranted the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the petition is denied.
The Supreme Court improvidently exercised its discretion in granting the petition for leaveto serve a late notice of claim on behalf of the infant, Kevin Sanabria.
The key factors to be considered in determining whether to grant leave to serve a late noticeof claim are whether the petitioner demonstrated a reasonable excuse for the failure to timelyserve a notice of claim, whether the petitioner was an infant, whether the public corporationacquired actual knowledge of the facts constituting the claim within 90 days of the incident or areasonable time thereafter, and whether the delay would substantially prejudice the publiccorporation in its defense (see General Municipal Law § 50-e [5]; Williams v Nassau County Med. Ctr.,6 NY3d 531 [2006]; Matter ofVicari v Grand Ave. Middle School, 52 AD3d 838, 838-839 [2008]; Matter of Melissa G. v North BabylonUnion Free School Dist., 50 AD3d 901, 902 [2008]).
The petitioner did not proffer any excuse for her failure to serve a timely notice of claimupon the appellants. Furthermore, while a school official prepared an accident claim form on theday of the incident, that report, which merely indicated that Sanabria was injured on the junglegym during recess, did not establish that the appellants had actual knowledge, within 90 days ofthe incident or a reasonable time thereafter, of the essential facts underlying the petitioner's claimof [*2]negligent supervision (see Matter of Scolo v Central Islip Union Free School Dist., 40 AD3d1104 [2007]; Matter of Doyle vElwood Union Free School Dist., 39 AD3d 544 [2007]; Matter of Scott v Huntington Union FreeSchool Dist., 29 AD3d 1010 [2006]; Matter of del Carmen v Brentwood Union Free School Dist., 7 AD3d620 [2004]; Matter of Conroy vSmithtown Cent. School Dist., 3 AD3d 492 [2004]; Corrales v Middle CountryCent. School Dist., 307 AD2d 907 [2003]; Matter of Price v Board of Educ. of City ofYonkers, 300 AD2d 310 [2002]; Matter of Ryder v Garden City School Dist., 277AD2d 388 [2000]). Moreover, the petitioner failed to establish that the nine-month delay afterthe expiration of the 90-day statutory period would not substantially prejudice the appellants inmaintaining a defense on the merits (seeMatter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 152 [2008];Matter of Lorseille v New York City Hous. Auth., 295 AD2d 612 [2002]; Matter ofSica v Board of Educ. of City of N.Y., 226 AD2d 542 [1996]). Spolzino, J.P., Santucci,Angiolillo, Leventhal and Lott, JJ., concur.