| Matter of Keyes v City of New York |
| 2011 NY Slip Op 08753 [89 AD3d 1086] |
| November 29, 2011 |
| Appellate Division, Second Department |
| In the Matter of Jasaiya Keyes et al., Appellants, v City of NewYork et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, Dona B.Morris, and Stephen S. Kim of counsel), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioners appeal from an order of the Supreme Court, Queens County (Flug, J.),entered January 14, 2011, which denied the petition.
Ordered that the order is affirmed, with costs.
In exercising its discretion to grant leave to serve a late notice of claim, the court must considervarious factors, including whether (1) the claimant has demonstrated a reasonable excuse for failing toserve a timely notice of claim, (2) the claimant was an infant, or mentally or physically incapacitated, (3)the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of itsaccrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the publiccorporation in defending on the merits (see General Municipal Law § 50-e [5]; Matter of Iacone v Town of Hempstead, 82AD3d 888 [2011]; Matter of Barnes vNew York City Health & Hosps. Corp., 69 AD3d 934 [2010]; Matter of Chambers v Nassau County HealthCare Corp., 50 AD3d 1134, 1135 [2008]).
Here, the petitioners failed to demonstrate that the respondents obtained actual knowledge of theessential facts constituting the claim that, inter alia, the respondents failed to protect the infant petitionerfrom being attacked by another student in the school's cafeteria. There was no evidence in the record tosupport the hearsay allegations of the infant petitioner's father that the infant petitioner reported theincident to a teacher or that the infant petitioner's grandmother had several meetings with the school'sprincipal. Furthermore, the petitioners failed to allege that the respondents were made aware of anypersonal injury to the infant petitioner within 90 days after the incident or a reasonable time thereafter.Accordingly, the petitioners failed to demonstrate that the respondents acquired timely actualknowledge of the facts constituting the claim (see Matter of Whittaker v New York City Bd. of Educ., 71 AD3d 776,778 [2010]; Matter of Smith v BaldwinUnion Free School Dist., 63 AD3d 1078, 1079 [2009]; Matter of Julie F. v City of New York, 50 AD3d 794, 795 [2008]).Moreover, the petitioners failed to establish that the respondents would not be substantially prejudicedin maintaining their defense on the merits as a result of the delay in serving a notice of [*2]claim upon the respondents (see Matter of Liebman v New York City Dept. of Educ., 69 AD3d 633[2010]; Matter of Smith v Baldwin UnionFree School Dist., 63 AD3d 1078 [2009]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d138, 152-153 [2008]).
Finally, the petitioners failed to demonstrate a reasonable excuse for their delay in serving a noticeof claim (see Matter of Tonissen v HuntingtonU.F.S.D., 80 AD3d 704, 705 [2011]; Matter of Julie F. v City of New York, 50AD3d at 796; Matter of Ealey v City of New York, 204 AD2d 720 [1994]). We have notconsidered the psychotherapist's reports and letter, as they were improperly submitted by thepetitioners for the first time with their papers in reply (see Conte v Valley Stream Cent. High School Dist., 23 AD3d 328, 329[2005]; Perre v Town of Poughkeepsie, 300 AD2d 379, 380 [2002]). Mastro, J.P., Balkin,Chambers and Sgroi, JJ., concur.