| Matter of Werner v Nyack Union Free School Dist. |
| 2010 NY Slip Op 06639 [76 AD3d 1026] |
| September 21, 2010 |
| Appellate Division, Second Department |
| In the Matter of Mindy Werner, Individually and as Mother andNatural Guardian of Gabriel Werner, an Infant, Appellant, v Nyack Union Free SchoolDistrict, Respondent. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Gregory A. Cascino 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 an order of the Supreme Court, Rockland County(Garvey, J.), dated September 22, 2009, which denied the petition.
Ordered that the order is affirmed, with costs.
In determining whether to grant leave to serve a late notice of claim, the court must considervarious factors, including whether (1) the claimant is an infant, (2) the movant has demonstrateda reasonable excuse for failing to serve a timely notice of claim, (3) the public corporationacquired actual knowledge of the facts constituting the claim within 90 days of its accrual or areasonable time thereafter, and (4) the delay would substantially prejudice the public corporationin defending on the merits (see General Municipal Law § 50-e [5]; Williams v Nassau County Med. Ctr.,13 AD3d 363, 364 [2004], affd6 NY3d 531 [2006]; Matter ofFlores v County of Nassau, 8 AD3d 377 [2004]; Matter of Cotten v County ofNassau, 307 AD2d 965 [2003]).
Here, the petitioner's excuses for the delay of more than eight months after the expiration ofthe 90-day period in seeking leave were not reasonable. First, the petitioner's ignorance of thenotice of claim requirement was not an acceptable excuse (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50AD3d 138, 150 [2008]; Matter ofDoyle v Elwood Union Free School Dist., 39 AD3d 544, 545 [2007]; Matter of Narcisse v Incorporated Vil. ofCent. Islip, 36 AD3d 920 [2007]). Furthermore, the petitioner's conclusory assertionsthat she did not immediately appreciate the nature and severity of her infant's injury, and that shewas caring for the infant, were unavailing without supporting medical evidence (see Matter of Wright v City of NewYork, 66 AD3d 1037, 1038 [2009]; Matter of Kumar v City of New York, 52 AD3d 517 [2008];Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 151; Matterof Lodati v City of New York, 303 AD2d 406, 407 [2003]).
In addition, the petitioner failed to establish that the respondent acquired actual knowledge ofthe essential facts constituting the claim within 90 days after the claim arose or within areasonable time thereafter (see General Municipal Law § 50-e [1] [a]; [5]; Matter of Formisano v Eastchester UnionFree School Dist., 59 AD3d 543, 544 [2009]; Matter of Grande v City of New York, 48 AD3d 565, 566 [2008];[*2]Matter of Gilliam v City of New York, 250 AD2d680, 681 [1998]; Matter of DiBella v City of New York, 234 AD2d 366, 367 [1996]).Although a student incident report and a medical claim form were prepared by school officialsimmediately after the accident, those documents merely indicated that the infant was injured afterhe slipped on spilled water on the gymnasium floor. The statute contemplates not onlyknowledge of the facts, but also how they relate to the legal claim to be asserted (seeWilliams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]; Matter of Carpenter v City of NewYork, 30 AD3d 594, 595 [2006]; Matter of Henriques v City of New York, 22 AD3d 847, 848[2005]; Matter of Sica v Board of Educ. of City of N.Y., 226 AD2d 542, 543 [1996]).The report and claim form did not provide the respondent with actual knowledge of the essentialfacts constituting the petitioner's present claim that the respondent caused the infant's injury byallowing the water to remain on the floor or that the respondent was negligent in the ownership,operation, maintenance, management, control, supervision, construction, design, and repair of thepremises (see Matter of Carpenter v City of New York, 30 AD3d at 595; Mack v Cityof New York, 265 AD2d 308, 309 [1999]; Matter of Guiliano v Town of Oyster Bay,244 AD2d 408, 409 [1997]; Matter of DiBella v City of New York, 234 AD2d at 367;Matter of Deegan v City of New York, 227 AD2d 620 [1996]).
Finally, the petitioner failed to establish that the respondent would not be substantiallyprejudiced in its defense on the merits should leave be granted (see Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d at 152; Matter of Lorseille v NewYork City Hous. Auth., 295 AD2d 612 [2002]; Matter of Sica v Board of Educ. of Cityof N.Y., 226 AD2d 542 [1996]). The petitioner failed to rebut the respondent's assertion thatthe extensive delay deprived it of the opportunity to conduct a timely and meaningfulinvestigation of the matter (see Matterof Scolo v Central Islip Union Free School Dist., 40 AD3d 1104, 1105 [2007];Matter of Price v Board of Educ. of City of Yonkers, 300 AD2d 310, 311 [2002];Matter of Booker v Wyandanch Union Free School Dist., 239 AD2d 574 [1997]). Dillon,J.P., Balkin, Chambers and Sgroi, JJ., concur.