| Matter of Jackson v Newburgh Enlarged City School Dist. |
| 2011 NY Slip Op 05500 [85 AD3d 1031] |
| June 21, 2011 |
| Appellate Division, Second Department |
| In the Matter of Samantha Jackson et al.,Respondents, v Newburgh Enlarged City School District,Appellant. |
—[*1] Finkelstein & Partners LLP, Newburgh, N.Y. (Andrew L. Spitz of counsel), forrespondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, Newburgh Enlarged City School District appeals from an order of the SupremeCourt, Orange County (Ritter, J.), dated August 16, 2010, which granted the petition and deemedthe notice of claim served.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the petition is denied.
Under General Municipal Law § 50-e (5), a court considering a petition for leave toserve a late notice of claim upon a public corporation must consider various factors, of which the"most important, based on its placement in the statute and its relation to other relevant factors"(Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138, 147 [2008]), is whether the public corporationacquired actual notice of the essential facts constituting the claim within 90 days of the accrual ofthe claim or within a reasonable time thereafter (see General Municipal Law § 50-e[5]; Matter of Whittaker v New YorkCity Bd. of Educ., 71 AD3d 776, 777 [2010]; Matter of Devivo v Town of Carmel, 68 AD3d 991 [2009]). Here,the City of Newburgh Police Department Incident Report submitted by the petitioners in supportof their petition stated that the infant petitioner sustained no injuries and did not seek medicalattention of any kind. Furthermore, neither the infant petitioner nor her parents alleged that therespondent was made aware of any personal injury to the infant petitioner within 90 days after theincident or within a reasonable time thereafter. Accordingly, the respondent did not acquiretimely actual knowledge of the facts constituting the claim (see Matter of Harper v City of New York, 69 AD3d 939, 940[2010]).
Moreover, the petitioners failed to proffer a reasonable excuse for their delay in serving anotice of claim, and failed to establish that the respondent will not be prejudiced by the morethan one year delay between the time of the incident and the time of the commencement of thisproceeding. Notably, the [*2]delay prevented the respondent frompromptly obtaining a medical or psychological examination of the infant petitioner, especiallysince there was no injury apparent immediately after the incident (see Forrest v Berlin Cent. School Dist.,29 AD3d 1230 [2006]; Santana vWestern Regional Off-Track Betting Corp., 2 AD3d 1304, 1305 [2003]; Matter ofSpaulding v Cobleskill-Richmondville Cent. School Dist., 289 AD2d 860, 861 [2001];Lemma v Off Track Betting Corp., 272 AD2d 669, 672 [2000]).
Accordingly, the petition should have been denied. Skelos, J.P., Dickerson, Hall, Austin andMiller, JJ., concur.