| Robertson v Somers Cent. School Dist. |
| 2011 NY Slip Op 09613 [90 AD3d 1012] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Lise L. Robertson et al., Respondents, v Somers CentralSchool District, Appellant, et al., Defendant. |
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Michael Fuller Sirignano, Cross River, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendant Somers CentralSchool District appeals from an order of the Supreme Court, Westchester County (Liebowitz, J.),entered January 26, 2011, which granted that branch of the plaintiffs' motion which was for leaveto serve late notices of claim and to deem their notices of claim timely served, nunc pro tunc.
Ordered that the order is reversed, on the law, on the facts, and in the exercise of discretion,with costs, and that branch of the plaintiffs' motion which was for leave to serve late notices ofclaim and to deem their notices of claim timely served, nunc pro tunc, is denied.
In determining whether to grant leave to serve a late notice of claim or to deem a notice ofclaim timely served, nunc pro tunc, the court must consider whether (1) the public corporationacquired actual knowledge of the essential facts constituting the claim within 90 days after theclaim arose or a reasonable time thereafter, (2) the claimant was an infant at the time the claimarose and, if so, whether there was a nexus between the claimant's infancy and the delay inservice of a notice of claim, (3) the claimant had a reasonable excuse for the delay, and (4) thepublic corporation was prejudiced by the delay in its ability to maintain its defense on the merits(see Education Law § 3813 [2-a]; General Municipal Law § 50-e [5]; Williams v Nassau County Med. Ctr., 6NY3d 531, 535 [2006]; Matter ofDiggs v Board of Educ. of City of Yonkers, 79 AD3d 869, 869-870 [2010]; Troy v Town of Hyde Park, 63 AD3d913, 914 [2009]; Matter ofFormisano v Eastchester Union Free School Dist., 59 AD3d 543, 544 [2009]).
Here, the plaintiffs failed to present a reasonable excuse for their delay in moving for leave toserve late notices of claim and to deem their notices of claim timely served, nunc pro tunc, andthere was no showing of a nexus between the alleged infancy of one of the plaintiffs and thedelay (see Grogan v Seaford Union FreeSchool Dist., 59 AD3d 596, 597 [2009]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d138, 151 [2008]; Matter of Doe vGoshen Cent. School Dist., 13 AD3d 526, 527 [2004]). Furthermore, there is no proof inthe record, nor did the plaintiffs even allege, that the appellant acquired actual knowledge of theessential facts constituting the claims [*2]within 90 days after theclaims arose or within a reasonable time thereafter (see Matter of Castro v Clarkstown Cent. School Dist., 65 AD3d1141, 1142 [2009]; Matter ofMonfort v Rockville Ctr. Union Free School Dist., 56 AD3d 480, 481 [2008]; Matter of Martinez v West HempsteadSchool Dist., 24 AD3d 557, 558 [2005]). Finally, the plaintiffs failed to establish thatthe delay would not substantially prejudice the appellant in maintaining its defense on the merits(see Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 152).
Accordingly, the Supreme Court should have denied that branch of the plaintiffs' motionwhich was for leave to serve late notices of claim and to deem their notices of claim timelyserved, nunc pro tunc.
In light of our determination, we need not reach the appellant's remaining contention. Dillon,J.P., Dickerson, Leventhal, Austin and Miller, JJ., concur.