| Matter of Avalos v City of N.Y. Bd. of Educ. |
| 2009 NY Slip Op 08005 [67 AD3d 675] |
| November 4, 2009 |
| Appellate Division, Second Department |
| In the Matter of Liz Avalos et al., Appellants, v City ofNew York Board of Education, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo andElizabeth I. Freedman of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioners appeal, as limited by their brief, from so much of an order of theSupreme Court, Queens County (Kerrigan, J.), dated August 14, 2008, as denied the petition.
Ordered that the order is affirmed insofar as appealed from, with costs.
In determining whether to grant leave to serve a late notice of claim, the court must consider,among other things, whether (1) there is a reasonable excuse for the delay, (2) the publiccorporation acquired actual knowledge of the essential facts constituting the claim within 90days of the claim's accrual or a reasonable time thereafter, and (3) the delay in serving the noticeof claim would result in substantial prejudice to the public corporation defending on the merits(see General Municipal Law § 50-e [5]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d138, 147-153 [2008]). Here, the petitioners failed to present a reasonable excuse for failingto serve a timely notice of claim (see Matter of Tineo v City of New York, 273 AD2d397 [2000]; Matter of Jackson v City of New Rochelle, 227 AD2d 483 [1996]). Inaddition, the petitioners failed to demonstrate that the respondent had actual notice of theessential facts constituting their claim within 90 days of their claim's accrual or a reasonable timethereafter (see Matter of Dunlea v Mahopac Cent. School Dist., 232 AD2d 558, 559-560[1996]). Finally, the petitioners failed to establish that the delay in serving the notice of claimwould not result in substantial prejudice to the respondent defending on the merits (id. at559-560). Accordingly, the Supreme Court did not improvidently exercise its discretion indenying the petition for leave to serve a late notice of claim. Fisher, J.P., Covello, Dickerson andLott, JJ., concur.