| Matter of Whittaker v New York City Bd. of Educ. |
| 2010 NY Slip Op 01969 [71 AD3d 776] |
| March 9, 2010 |
| Appellate Division, Second Department |
| In the Matter of Tamika Whittaker, Appellant, v NewYork City 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 petitioner appeals from a judgment of the Supreme Court, Queens County(Kerrigan, J.), dated April 8, 2009, which, upon an order of the same court dated February 5,2009, denying the petition, dismissed the proceeding.
Ordered that the judgment is reversed, on the facts and in the exercise of discretion, withcosts, the petition is granted, and the order is modified accordingly.
In early October 2007 the infant petitioner (hereinafter the petitioner) allegedly wasassaulted by the parent of another student during school hours in the cafeteria of the publicschool she attended. At least one school employee saw the attack, and the petitioner was taken tothe hospital for treatment. The police were summoned and the assailant was prosecuted. Therewas evidence that, a week before the attack, the petitioner's father had complained to the school'sprincipal and vice-principal about threats made by the assailant against the petitioner inside theschool.
The petitioner did not serve a notice of claim under General Municipal Law § 50-e (5)until several months after the expiration of the 90-day limit, and she subsequently petitioned forleave to serve a late notice of claim. The Supreme Court denied the petition. We find that thepetition should have been granted and therefore we reverse.
Under General Municipal Law § 50-e (5), a court considering a petition for leave toserve a late notice of claim upon a municipal corporation must consider various factors, of whichthe "most important, based on its placement in the statute and its relation to other relevantfactors" (Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d 138, 147 [2008]; see Matter of Devivo v Town ofCarmel, 68 AD3d 991 [2009]), is whether the public corporation acquired actual noticeof the essential facts constituting the claim within 90 days of the accrual of the claim or within areasonable time thereafter (see General Municipal Law § 50-e [5]). "In order tohave actual knowledge of the essential facts constituting the claim, the public corporation musthave knowledge of the facts that underlie the legal theory or theories on which liability ispredicated in the notice of claim; the [*2]public corporation neednot have specific notice of the theory or theories themselves" (Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d at 148). Additional factors relevant towhether a petition for leave to serve a late notice of claim should be granted include whether thepetitioner has demonstrated a reasonable excuse for failing to serve a timely notice of claim andwhether the delay has substantially prejudiced the municipal corporation in its ability to defendthe claim on the merits (see Matter ofLiebman v New York City Dept of Educ., 69 AD3d 633 [2010]; Matter of Mounsey v City of NewYork, 68 AD3d 998 [2009]; Matter of Felice v Eastport/South Manor Cent. SchoolDist., 50 AD3d at 139). It is the petitioner's burden to establish the lack of substantialprejudice (id. at 152; see Matterof Allende v City of New York, 69 AD3d 931 [2010]).
Here, the petitioner demonstrated that the municipal corporation acquired actual knowledgeof the facts constituting the claim within the statutory period or within a reasonable timethereafter. The alleged assault by a parent took place on school grounds during school hours inview of a school employee, the police were summoned, and a prosecution ensued. Additionally,the petitioner alleged, without contradiction, that school officials were on notice of threatspreviously made by the assailant against the petitioner on school grounds. Consequently, thepetitioner demonstrated that the municipal corporation was aware, not merely of the injury, butalso of the facts underlying the legal theory upon which liability would be predicated (see Gibbs v City of New York, 22AD3d 717 [2005]; cf. Matter ofCharles v City of New York, 67 AD3d 793 [2009]; Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d at 149-150; Matter of Scolo v Central Islip Union FreeSchool Dist., 40 AD3d 1104, 1105-1106 [2007]). Given these circumstances, it is alsoclear that the petitioner met her burden of demonstrating that the municipal corporation wouldnot be substantially prejudiced in defending the claim by reason of the delay (see Matter of Allende v City of NewYork, 69 AD3d 931 [2010]). That the petitioner failed to provide a reasonable excusefor her failure to serve a timely notice of claim is not dispositive (see Matter of Leeds v Port WashingtonUnion Free School Dist., 55 AD3d 734, 736 [2008]).
Finally, the evidence submitted by the petitioner in reply papers should have beenconsidered under the particular circumstances here, including the fact that the respondent had anopportunity to respond and submit papers in sur-reply (see Valure v Century 21 Grand, 35 AD3d 591, 592 [2006]; Hoffman v Kessler, 28 AD3d 718,719 [2006]; Guarneri v St. John, 18AD3d 813, 814 [2005]; Matter ofHayden v County of Nassau, 16 AD3d 415, 416 [2005]; Basile v Grand UnionCo., 196 AD2d 836, 837 [1993]). Fisher, J.P., Santucci, Angiolillo and Lott, JJ., concur.