| Matter of Allende v City of New York |
| 2010 NY Slip Op 00674 [69 AD3d 931] |
| January 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of Moses Allende et al., Appellants, v City ofNew York et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Elizabeth S. Natrella ofcounsel; Farng-Yi Foo on the brief), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioners appeal from an order of the Supreme Court, Kings County(Miller, J.), dated March 18, 2009, which denied the petition.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof denying that branch of the petition which was for leave to serve a latenotice of claim on the respondent New York City Department of Education, and substitutingtherefor a provision granting that branch of the petition; as so modified, the order is affirmed,without costs or disbursements.
The Supreme Court providently exercised its discretion in denying that branch of the petitionwhich was for leave to serve a late notice of claim on the City of New York. The City correctlycontends that it is not liable to the petitioners for this incident, which occurred on public schoolpremises, since it does not operate, maintain, or control the public schools (see Myers v City of New York, 64AD3d 546, 547 [2009]; Leacock vCity of New York, 61 AD3d 827 [2009]; Perez v City of New York, 41 AD3d 378, 379 [2007]). While themerits of a claim ordinarily are not considered on a motion for leave to serve a late notice ofclaim, where the proposed claim is patently without merit, leave to serve a late notice of claimshould be denied (see Matter ofCatherine G. v County of Essex, 3 NY3d 175, 179 [2004]; Matter of Besedina v New York City Tr.Auth., 47 AD3d 924, 925 [2008]; Matter of State Farm Fire & Cas. Co. v Village of Bronxville, 24 AD3d453, 454 [2005]; Matter of Finneran v City of New York, 228 AD2d 596 [1996]).The petitioners' claim of negligent supervision by school employees is patently without meritwith respect to the City, and leave to serve a late notice of claim on the City was properlydenied.
However, the Supreme Court improvidently exercised its discretion in denying that branchof the petition which was for leave to serve a late notice of claim on the New York CityDepartment of Education (hereinafter the DOE). The record indicates that the DOE receivedactual [*2]knowledge of the essential facts constituting the claimwithin the 90-day statutory period or within a reasonable time thereafter (see GeneralMunicipal Law § 50-e [1], [5]; cf.Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 149-150[2008]). The actions taken by the DOE immediately following the incident, which occurred onthe school playground during recess, placed it on notice of the incident and any potential claimthat might arise therefrom. In particular, immediately after the incident, the school nurse treatedthe infant petitioner's injury and sent him to the hospital, and the assistant principal prepared anoccurrence/comprehensive injury report on the day of the incident and updated that report fivedays after the incident (see Matter ofLeeds v Port Washington Union Free School Dist., 55 AD3d 734 [2008]; Matter of Andrew T.B. v Brewster Cent.School Dist., 18 AD3d 745, 748 [2005]; Friedman v Syosset Cent. School Dist.,154 AD2d 337 [1989]; Pepe v Somers Cent. School Dist., 108 AD2d 799, 800 [1985]).In addition, the infant petitioner's mother met with the principal and assistant principal on thenext school day after the incident and reiterated her prior complaints regarding the school'ssupervision of her son and the other student involved in this incident (see Matter of McLean v Valley StreamUnion Free School Dist., 30, 48 AD3d 571 [2008]; Matter of Howe v Village ofTrumansburg, 169 AD2d 1018, 1019 [1991]). By demonstrating that the DOE acquiredtimely knowledge of the essential facts of the claim and conducted an investigation, thepetitioners met their initial burden of establishing a lack of substantial prejudice to the DOEshould late service of the notice of claim be allowed (see Matter of Leeds v Port WashingtonUnion Free School Dist., 55 AD3d at 735-736; Matter of Melissa G. v North Babylon Union Free School Dist., 50AD3d 901, 902 [2008]; Catterson vSuffolk County Dept. of Health Servs., 49 AD3d 792 [2008]; Jordan v City of New York, 41 AD3d658, 660 [2007]). The DOE's conclusory assertion that it will be unable to investigate thepetitioners' claim due to the passage of time was insufficient to overcome the petitioners'showing of a lack of substantial prejudice (see Matter of Leeds v Port Washington UnionFree School Dist., 55 AD3d at 736; Jordan v City of New York, 41 AD3d at 660; Gibbs v City of New York, 22 AD3d717, 720 [2005]).
Although the petitioners' principal excuse for failing to serve a timely notice of claim, fear ofretaliation, was not reasonable and unrelated to the infancy (see Matter of Formisano v Eastchester Union Free School Dist., 59AD3d 543, 544 [2009]; Doukas v East Meadow Union Free School Dist., 187 AD2d552, 553 [1992]), where there is actual notice and an absence of prejudice, the lack of areasonable excuse will not bar the granting of a petition for leave to serve a late notice of claim(see Matter of Vasquez v City ofNewburgh, 35 AD3d 621, 624 [2006]). Fisher, J.P., Santucci, Dickerson, Chambers andLott, JJ., concur.