| Matter of Ambrico v Lynbrook Union Free School Dist. |
| 2010 NY Slip Op 01956 [71 AD3d 762] |
| March 9, 2010 |
| Appellate Division, Second Department |
| In the Matter of Trevor Ambrico et al.,Respondents, v Lynbrook Union Free School District,Appellant. |
—[*1] Kenneth M. Mollins, P.C., Melville, N.Y. (Leo Bevolas of counsel), forrespondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the Lynbrook Union Free School District appeals from an order of the SupremeCourt, Nassau County (Palmieri, J.), entered May 15, 2009, which granted the petition anddeemed the notice of claim timely served nunc pro tunc.
Ordered that the order is affirmed, with costs.
In determining whether to grant an application for leave to serve a late notice of claim, thekey factors which the court must consider are whether the public corporation acquired actualknowledge of the essential facts constituting the claim within 90 days or a reasonable timethereafter, whether the claimant was an infant or mentally or physically incapacitated, whetherthe claimant had a reasonable excuse for the delay in serving a notice of claim, and whether themunicipality would be substantially prejudiced by the delay in maintaining its defense on themerits (see Matter of Andrew T.B. vBrewster Cent. School Dist., 18 AD3d 745, 746 [2005]; Fuentes v County of Nassau, 15 AD3d346 [2005]; Rogers v City of Yonkers, 271 AD2d 593 [2000]). The presence orabsence of any one factor is not necessarily determinative (see Matter of Leeds v Port Washington Union Free School Dist., 55AD3d 734 [2008]; Jordan v City ofNew York, 41 AD3d 658, 659 [2007]). However, whether the municipality timelyacquired actual knowledge of the essential facts constituting the claim is a factor which isaccorded great weight (see Matter ofBrownstein v Incorporated Vil. of Hempstead, 52 AD3d 507, 509 [2008]; Matter of Felice v Eastport/South ManorCent. School Dist., 50 AD3d 138, 147 [2008]; Matter of Dell'Italia v Long Is. R.R.Corp., 31 AD3d 758, 759 [2006]).
Here, even if the information provided by the petitioners to the appellant's personnelregarding the incident and the infant petitioner's injury within 90 days after the incident wasinsufficient to provide actual knowledge of the facts constituting the negligent supervision claim,the petitioners served their notice of claim and, thus, provided the appellant with actualknowledge of the essential facts constituting that claim, within a reasonable time after theexpiration of the 90-day period (seeErichson v City of Poughkeepsie Police Dept., 66 AD3d 820, 821 [2009]; Matter of Gelish v [*2]Dix Hills Water Dist., 58 AD3d 841, 842 [2009]; Bussey v City of New York, 50 AD3d938, 939 [2008]; Matter of Harrison v New York City Hous. Auth., 188 AD2d 367,368 [1992]). Furthermore, the petitioners demonstrated a lack of substantial prejudice to theappellant by the short delay (see Matterof Hursala v Seaford Middle School, 46 AD3d 892, 893 [2007]; Matter of Vitale v Elwood Union FreeSchool Dist., 19 AD3d 610, 611 [2005]). Accordingly, the Supreme Court providentlyexercised its discretion in granting the petition. Skelos, J.P., Covello, Eng, Chambers and Sgroi,JJ., concur.