| Matter of Nurse v City of New York |
| 2011 NY Slip Op 06130 [87 AD3d 543] |
| August 2, 2011 |
| Appellate Division, Second Department |
| In the Matter of Anita Nurse, Appellant, v City of NewYork et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and JulieSteiner of counsel), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim upon the City of New York, the New York City Department of Education, andthe New York City Administration for Children's Services, the petitioner appeals, as limited byher brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated May26, 2010, as, in effect, denied that branch of the petition which was for leave to serve a latenotice of claim upon the New York City Department of Education.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, with costs, and that branch of the petition which was for leave to serve a late notice ofclaim upon the New York City Department of Education is granted.
On December 2, 2008, the petitioner, employed by the New York City Police Department asa school safety agent, and assigned to I.S. 59 in Springfield Gardens, allegedly was attacked by astudent in a third-floor hallway of the school during school hours. The attack rendered thepetitioner unconscious and she was transported to the hospital by ambulance. It is undisputed thatthe attack was witnessed by two other school safety agents and school personnel, including theprincipal. Furthermore, the petitioner alleged, without contradiction, that prior to December 2,2008, she had been informed by the assistant principal that the perpetrator had been removedfrom the school due to her violent behavior but that she would be present in the school for two orthree days because of a mix-up or problem with placing her elsewhere.
In late February 2010, within one year and 90 days of the incident giving rise to the claim,the petitioner commenced this proceeding pursuant to General Municipal Law § 50-e (5)for leave to serve a late notice of claim upon the City of New York, the New York CityDepartment of Education (hereinafter the Department of Education), and the New York CityAdministration for Children's Services. In an order dated May 26, 2010, the Supreme Courtdenied the petition. The petitioner appeals from so much of the order as, in effect, denied thatbranch of her petition which was for leave to serve a late notice of claim upon the Department ofEducation. We reverse the order insofar as appealed from.[*2]
"In determining whether to grant leave to serve a latenotice of claim, a court must consider whether: (1) the public corporation acquired actualknowledge of the essential facts constituting the claim within 90 days after the claim arose or areasonable time thereafter, (2) the claimant was an infant or mentally or physically incapacitated,(3) the claimant had a reasonable excuse for the failure to serve a timely notice of claim, and (4)the delay would substantially prejudice the public corporation in its defense" (Matter of Tonissen v HuntingtonU.F.S.D., 80 AD3d 704, 704-705 [2011]). The presence or absence of any one factor isnot necessarily determinative (id. at 705), but whether the public corporation had actualknowledge of the essential facts constituting the claim is "the most important, based upon itsplacement in the statute and its relation to other relevant factors" (Matter of Felice v Eastport/South ManorCent. School Dist., 50 AD3d 138, 147 [2008]). General knowledge that a wrong hasbeen committed is not enough to satisfy the actual knowledge requirement (see Matter of Devivo v Town ofCarmel, 68 AD3d 991, 992 [2009]; Matter of Wright v City of New York, 66 AD3d 1037, 1038[2009]). "In order to have actual knowledge of the essential facts constituting the claim, thepublic corporation must have knowledge of the facts that underlie the legal theory or theories onwhich liability is predicated in the notice of claim; the public corporation need not have specificnotice of the theory or theories themselves" (Matter of Felice v Eastport/South Manor Cent.School Dist., 50 AD3d at 148; seeMatter of Leeds v Port Washington Union Free School Dist., 55 AD3d 734, 735[2008]).
The Supreme Court improvidently exercised its discretion in, in effect, denying that branchof the petition which was for leave to serve a late notice of claim upon the Department ofEducation. The petitioner demonstrated that the Department of Education acquired actualknowledge of the facts constituting the claim within the 90-day statutory period or a reasonabletime thereafter (see Matter of Whittakerv New York City Bd. of Educ., 71 AD3d 776, 777-778 [2010]; Matter of Leeds vPort Washington Union Free School Dist., 55 AD3d at 735). As such, she met her burden ofdemonstrating that the Department of Education would not be substantially prejudiced indefending the claim by reason of the delay (see Matter of Whittaker v New York City Bd. ofEduc., 71 AD3d at 778; Matter ofAllende v City of New York, 69 AD3d 931, 933 [2010]). In light of the fact that theDepartment of Education had actual knowledge of the facts constituting the claim and will not besubstantially prejudiced by the delay, the petitioner's failure to demonstrate a reasonable excusefor the delay does not bar the granting of leave to serve a late notice of claim (see Matter ofWhittaker v New York City Bd. of Educ., 71 AD3d at 778; Erichson v City of Poughkeepsie PoliceDept., 66 AD3d 820, 821-822 [2009]).
The Department of Education's remaining contentions either are without merit or have beenrendered academic by our determination. Dillon, J.P., Eng, Sgroi and Miller, JJ., concur.