| Bazile v City of New York |
| 2012 NY Slip Op 02825 [94 AD3d 929] |
| April 17, 2012 |
| Appellate Division, Second Department |
| Stacy Bazile et al., Appellants, v City of New York,Respondent, et al., Defendant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and JulieSteiner of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries based upon negligent hiring,retention, and supervision, etc., the plaintiffs appeal, as limited by their brief, (1) from so muchof an order of the Supreme Court, Queens County (Flug, J.), entered October 15, 2010, as deniedthose branches of their motion which were, in effect, for leave to serve a late notice of claimupon the New York City Department of Education, to deem their amended notice of claim timelyserved, nunc pro tunc, and to amend the complaint to add the New York City Department ofEducation as a defendant, and granted the cross motion of the defendant City of New Yorkpursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it, and (2)from so much of an order of the same court entered June 9, 2011, as denied that branch of theirmotion which was for leave to renew their prior motion.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs.
In order to maintain a tort action against a school district, a claimant must serve a notice ofclaim within 90 days of the alleged injury (see Education Law § 3813 [2]; GeneralMunicipal Law § 50-i [1]; Matterof Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 143 [2008]; Matter of Padovano v Massapequa UnionFree School Dist., 31 AD3d 563, 564 [2006]). Although the notice of claim must beserved within 90 days after the claim arises, courts are authorized to extend the time in which toserve a notice of claim, provided that the extension does not exceed the time limit for thecommencement of an action by the claimant against the public corporation (see GeneralMunicipal Law § 50-e [5]). In determining whether to grant leave to serve a late notice ofclaim or to deem a notice of claim timely served, nunc pro tunc, the court must consider whether(1) the public corporation acquired actual knowledge of the essential facts constituting the claimwithin 90 days after the claim arose or a reasonable time thereafter, (2) the claimant was an infantat the time the claim arose and, if so, whether there was a nexus between the claimant's infancyand the delay in service of a notice of claim, (3) the claimant had a reasonable excuse for thedelay, and (4) the public corporation was prejudiced by the delay in its ability to [*2]maintain its defense on the merits (see Education Law§ 3813 [2-a]; General Municipal Law § 50-e [5]; Williams v Nassau County Med. Ctr., 6 NY3d 531, 535 [2006]; Matter of Diggs v Board of Educ. of City ofYonkers, 79 AD3d 869, 869-870 [2010]; Troy v Town of Hyde Park, 63 AD3d 913, 914 [2009]; Matter of Formisano v Eastchester UnionFree School Dist., 59 AD3d 543, 544 [2009]).
Here, the Supreme Court properly denied that branch of the plaintiffs' motion, made after thestatute of limitations had expired, which was, in effect, for leave to serve a late notice of claimupon the New York City Department of Education (hereinafter the DOE) on behalf of the motherin her individual capacity (see Kim L. vPort Jervis City School Dist., 77 AD3d 627, 630 [2010]). "The infancy toll (seeCPLR 208) is personal to the infant . . . and does not extend to [a] derivative causeof action" (Matter of Andrew T.B. vBrewster Cent. School Dist., 18 AD3d 745, 748 [2005]; see Kim L. v Port JervisCity School Dist., 77 AD3d at 630; Matter of Ricci v Harrison Cent. School Dist., 27 AD3d 653,653-654 [2006]; Nardi v County ofNassau, 18 AD3d 520, 521 [2005]).
The Supreme Court also providently exercised its discretion in denying that branch of theplaintiffs' motion which was, in effect, for leave to serve a late notice of claim upon the DOE onbehalf of the infant plaintiff (see Matter of Felice v Eastport/South Manor Cent. SchoolDist., 50 AD3d at 143). Not only did the plaintiffs fail to satisfy their burden of showing thatthe DOE acquired timely, actual knowledge of the essential facts constituting the claim, they didnot offer a reasonable excuse for the delay in seeking leave to serve a late notice of claim (see Robertson v Somers Cent. SchoolDist., 90 AD3d 1012, 1013 [2011]; Matter of Diggs v Board of Educ. of City ofYonkers, 79 AD3d at 870). Furthermore, the infancy of one of the plaintiffs, without anyshowing of a nexus between the infancy and the delay, was insufficient to constitute a reasonableexcuse (see Robertson v Somers Cent. School Dist., 90 AD3d at 1012-1013).
With respect to that branch of the plaintiffs' motion which was for leave to renew, "[i]ngeneral, a motion for leave to renew must be based upon new facts not offered on the priormotion that would change the prior determination, and must set forth a reasonable justificationfor the failure to present such facts on the prior motion" (Worrell v Parkway Estates, LLC, 43 AD3d 436, 437 [2007]). Amotion "to renew is not a second chance freely given to parties who have not exercised duediligence in making their first factual presentation" (Renna v Gullo, 19 AD3d 472, 473 [2005] [internal quotation marksomitted]). The Supreme Court lacks discretion to grant renewal where the moving party omits areasonable justification for failing to present the new facts on the original motion (seeWorrell v Parkway Estates, LLC, 43 AD3d at 437). Here, in support of that branch of theirmotion which was for leave to renew, the plaintiffs submitted additional facts known to them atthe time of the prior motion without demonstrating a reasonable justification for failing to submitthem on the earlier motion (see Renna v Gullo, 19 AD3d at 473). Thus, the SupremeCourt properly denied that branch of the plaintiffs' motion which was for leave to renew.
The plaintiffs' remaining contentions are without merit. Rivera, J.P., Chambers, Roman andSgroi, JJ., concur.