| Matter of McLeod v City of New York |
| 2013 NY Slip Op 02251 [105 AD3d 744] |
| April 3, 2013 |
| Appellate Division, Second Department |
| In the Matter of Adriane McLeod,Respondent, v City of New York et al., Appellants. |
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In a proceeding pursuant to General Municipal Law § 50-e (5) for leave toserve a late notice of claim, the City of New York and the New York City Department ofEducation appeal from an order of the Supreme Court, Kings County (Ash, J.), datedFebruary 1, 2012, which granted the petition.
Ordered that the order is affirmed, without costs or disbursements.
The petitioner's infant son allegedly was injured inside the gymnasium of a middleschool in Brooklyn while playing tackle football without any safety equipment. TheSupreme Court granted the petition for leave to serve the City of New York and the NewYork City Department of Education (hereinafter together the City defendants) with a latenotice of claim.
In determining whether to grant leave to serve a late notice of claim, the court mustconsider whether (1) the public corporation acquired actual knowledge of the essentialfacts constituting the claim within 90 days after the claim arose or a reasonable timethereafter, (2) the claimant was an infant at the time the claim arose and, if so, whetherthere was a nexus between the claimant's infancy and the delay, (3) the claimant had areasonable excuse for the failure to serve a timely notice of claim and the subsequentdelay in seeking leave to serve a notice of claim, and (4) the public corporation wasprejudiced by the delay in its ability to maintain its defense on the merits (seeEducation Law § 3813 [2-a]; General Municipal Law § 50-e [5]; Williams v Nassau County Med.Ctr., 6 NY3d 531, 535 [2006]; Bazile v City of New York, 94 AD3d 929, 929-930 [2012];Matter of Diggs v Board ofEduc. of City of Yonkers, 79 AD3d 869, 869-870 [2010]).
Here, the City defendants acquired actual knowledge of the essential factsconstituting the claim within 90 days after the claim arose, as indicated by an affidavitfrom the petitioner, wherein she stated that immediately following her son's injury, ateacher's aide took her son to the hospital where he was admitted and underwent surgery,and remained for two weeks. The petitioner further stated that within one month after theincident, she told the dean of the school that she was upset that her son was permitted toplay tackle football without safety equipment during gym class, and that she wanted tomake a claim against the school (see Fredrickson v New York City Hous. Auth., 87 AD3d425 [2011]; Cruz v City of Yonkers, 268 AD2d 501 [2000]). Furthermore,the City defendants [*2]would not be substantiallyprejudiced in their ability to maintain a defense. Although the petitioner failed to providea reasonable excuse for failing to timely serve a notice of claim, under the circumstancesof this case, that is not fatal to the petition (see Gonzalez v County of Nassau, 57 AD3d 480 [2008]).
The record is inadequate to permit review of the City defendants' remainingcontention (see Matison v County of Nassau, 290 AD2d 494 [2002]). Skelos,J.P., Chambers, Sgroi and Hinds-Radix, JJ., concur.