| Tegay v Rocky Point Sch. Dist. |
| 2012 NY Slip Op 08719 [101 AD3d 985] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Melodie Tegay, Appellant, v Rocky Point School Districtet al., Respondents, et al., Defendant. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia and Glenn A.Kaminska of counsel), for respondents.
In an action to recover damages for defamation, the plaintiff appeals from an order of theSupreme Court, Suffolk County (Baisley, Jr., J.), dated November 16, 2011, which denied hermotion pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice ofclaim.
Ordered that the order is affirmed, with costs.
In determining whether to permit service of a late notice of claim, the court must consider allrelevant circumstances, including whether the public corporation acquired actual knowledge ofthe facts constituting the claim within 90 days after the claim arose or within a reasonable timethereafter, whether the claimant demonstrated a reasonable excuse for the delay in serving atimely notice of claim, and whether the delay would substantially prejudice the publiccorporation in defending on the merits (see Education Law § 3813 [2-a]; GeneralMunicipal Law § 50-e [5]; Matterof Ambrico v Lynbrook Union Free School Dist., 71 AD3d 762, 763 [2010]; Matter of Acosta v City of New York,39 AD3d 629, 630 [2007]; Matterof Andrew T.B. v Brewster Cent. School Dist., 18 AD3d 745, 746 [2005]).
Here, the plaintiff did not proffer any excuse for her lengthy delay in seeking leave to serve alate notice of claim (see Matter ofJackson v Newburgh Enlarged City School Dist., 85 AD3d 1031, 1032 [2011]; Matter of Castro v Clarkstown Cent.School Dist., 65 AD3d 1141, 1142 [2009]; Troy v Town of Hyde Park, 63 AD3d 913, 914 [2009]).Furthermore, the plaintiff failed to demonstrate that the respondents had timely, actualknowledge of the essential facts constituting her claim that the respondents made defamatorystatements regarding her conduct as an employee, and that these statements were made withmalice (see Bayer v City of NewYork, 60 AD3d 713, 714 [2009]; Forrest v Berlin Cent. School Dist., 29 AD3d 1230, 1231 [2006]).Moreover, the plaintiff did not establish that the delay did not substantially prejudice therespondents' ability to investigate and defend against the claim (see Matter of Devivo v Town ofCarmel, 68 AD3d 991 [2009]; Matter of Avalos v City of N.Y. Bd. of Educ., 67 AD3d 675[2009]; Matter of Formisano vEastchester Union Free School Dist., 59 AD3d 543, 545 [2009]). Accordingly, theplaintiff's motion for leave to serve a late notice of claim was properly denied. Angiolillo, J.P.,Balkin, Austin and Miller, JJ., concur.