| Matter of Joseph v City of New York |
| 2012 NY Slip Op 08310 [101 AD3d 721] |
| December 5, 2012 |
| Appellate Division, Second Department |
| In the Matter of Antisha Joseph, Respondent, v City ofNew York et al., Appellants. |
—[*1] Jacoby & Meyers, LLP, Newburgh, N.Y. (Andrew L. Spitz of counsel), forrespondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the appeal is from an order of the Supreme Court, Kings County (Ash, J.), datedNovember 9, 2011, which granted the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,the petition is denied, and the proceeding is dismissed.
In determining whether to grant leave to serve a late notice of claim, the court must consider,inter alia, whether (1) the public corporation acquired actual knowledge of the essential factsconstituting the claim within 90 days after the accident or a reasonable time thereafter, (2) theclaimant was an infant at the time the claim arose and, if so, whether there was a nexus betweenthe claimant's infancy and the delay, (3) the claimant had a reasonable excuse for the failure toserve a timely notice of claim and the subsequent delay in seeking leave to serve a notice ofclaim, and (4) the public corporation was prejudiced by the delay in its ability to maintain itsdefense on the merits (see Education Law § 3813 [2-a]; General Municipal Law§ 50-e [5]; Williams v NassauCounty Med. Ctr., 6 NY3d 531, 535 [2006]; Bazile v City of New York, 94 AD3d 929, 929-930 [2012]; 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]).
The petitioner failed to proffer any excuse for the failure to serve a timely notice of claim andfor the subsequent delay in commencing this proceeding (see Matter of Estate of Curreri v New York City Hous. Auth., 87 AD3d1064, 1065 [2011]; Troy v Town of Hyde Park, 63 AD3d at 914; Matter of Grant v Nassau County Indus.Dev. Agency, 60 AD3d 946, 947 [2009]). Furthermore, there was no showing of a nexusbetween the petitioner's infancy and the delay (see Robertson v Somers Cent. School Dist., 90 AD3d 1012,1012-1013 [2011]; Matter of Doyle vElwood Union Free School Dist., 39 AD3d 544 [2007]).
Moreover, the petitioner failed to demonstrate that the appellants acquired actual knowledgeof the essential facts constituting the claim within 90 days after the accident or a [*2]reasonable time thereafter. While an occurrence report wasprepared by the New York City Department of Education about two weeks after the accident, thatreport, which merely indicated that the petitioner had been injured in the cafeteria when she fellas she was getting up from a lunch table, did not establish that the appellants had timely, actualknowledge of the essential facts underlying her claim of negligent supervision (see Matter of Scolo v Central Islip UnionFree School Dist., 40 AD3d 1104, 1106 [2007]; Matter of Doyle v Elwood Union Free School Dist., 39 AD3d 544[2007]; Matter of Scott v HuntingtonUnion Free School Dist., 29 AD3d 1010, 1011 [2006]; Conte v Valley Stream Cent. High SchoolDist., 23 AD3d 328 [2005]). Finally, the petitioner did not meet her burden of rebuttingthe appellants' assertions that the delay of more than two years in commencing this proceedingwill substantially prejudice their ability to investigate the facts, and to locate and examinewitnesses while their memories of the facts are still fresh (see Matter of Formisano v Eastchester Union Free School Dist., 59AD3d 543, 545 [2009]; Matter of Scolo v Central Islip Union Free School Dist., 40AD3d at 1106; Matter of Gilliam v City of New York, 250 AD2d 680, 681 [1998]).Accordingly, the Supreme Court improvidently exercised its discretion in granting the petition.Dillon, J.P., Hall, Roman and Cohen, JJ., concur.