| Matter of Rodriguez v Woodhull Sch. |
| 2013 NY Slip Op 02754 [105 AD3d 1050] |
| April 24, 2013 |
| Appellate Division, Second Department |
| In the Matter of Jaime Marcelo Rodriguez,Respondent, v Woodhull School et al., Defendants, and Fire Island Union FreeSchool District, Appellant. |
—[*1] Bournazos & Matarangas, P.C. (Pollack Pollack Isaac & De Cicco, New York, N.Y.[Brian J. Isaac and Michael H. Zhu], of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave toserve a late notice of claim, the Fire Island Union Free School District appeals, as limitedby its brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo,J.), dated September 11, 2012, as granted that branch of the petition which was for leaveto serve a late notice of claim upon it.
Ordered that the order is affirmed insofar as appealed from, with costs.
In order to maintain a tort action against a school district, a claimant must serve anotice of claim within 90 days after the claim accrued (see Education Law§ 3813 [2]; General Municipal Law § 50-i [1]; Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138, 143 [2008]; Matter of Padovano v MassapequaUnion Free School Dist., 31 AD3d 563, 564 [2006]). In determining whether togrant leave to serve a late notice of claim, the court must consider whether (1) theclaimant had a reasonable excuse for the failure to serve a timely notice of claim, (2) thepublic corporation acquired actual knowledge of the essential facts constituting the claimwithin 90 days after the claim arose or a reasonable time thereafter, and (3) the delaywould substantially prejudice the public corporation in maintaining its defense on themerits (see Education Law § 3813 [2-a]; General Municipal Law §50-e [5]; Bazile v City of NewYork, 94 AD3d 929, 929-930 [2012]; Matter of Henriques v City of New York, 22 AD3d 847,848 [2005]).
Here, the Fire Island Union Free School District (hereinafter the District) acquiredactual knowledge of the essential facts constituting the claim within 90 days after theclaim arose (see Matter of Leedsv Port Washington Union Free School Dist., 55 AD3d 734, 735 [2008]; Gibbs v City of New York, 22AD3d 717, 719 [2005]; Bovich v East Meadow Pub. Lib., 16 AD3d 11, 20 [2005]).Immediately after the petitioner allegedly was injured in an accident at a school in theDistrict, the petitioner told the school's custodian how the accident occurred, a Districtemployee called emergency medical services, and the petitioner was transported to ahospital. An incident form was prepared by the District which indicated the time andplace of the accident and the petitioner's injuries, and the [*2]petitioner's accident was discussed at a constructionmeeting attended by the school's superintendent. Since the District acquired timelyknowledge of the essential facts constituting the petitioner's claim, the petitioner met hisinitial burden of showing a lack of prejudice (see Matter of Joy v County of Suffolk, 89 AD3d 1025,1026 [2011]; Matter of Allendev City of New York, 69 AD3d 931, 933 [2010]; Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d at 152). The District'sconclusory assertions of prejudice, based solely on the petitioner's delay in serving thenotice of claim, were insufficient to rebut the petitioner's showing (see Matter of Joyv County of Suffolk, 89 AD3d at 1026; Jordan v City of New York, 41 AD3d 658, 660 [2007]; Gibbs v City of New York, 22AD3d 717 [2005]).
While the petitioner's excuses for his failure to serve a timely notice of claim werenot reasonable (see Matter ofVasquez v City of Newburgh, 35 AD3d 621, 623 [2006]; Astree v New York City Tr.Auth., 31 AD3d 589 [2006]), the absence of a reasonable excuse is not fatal tothe petition where, as here, there was actual notice and absence of prejudice (see Matter of Lavender v GardenCity Union Free School Dist., 93 AD3d 670, 671 [2012]; Matter of St. Paul Guardian Ins.Corp. v Pocatello Fire Dist., 90 AD3d 761, 762 [2011]; Matter of Vasquez vCity of Newburgh, 35 AD3d at 623).
Accordingly, the Supreme Court providently exercised its discretion in granting thatbranch of the petition which was for leave to serve a late notice of claim upon theDistrict. Skelos, J.P., Chambers, Sgroi and Hinds-Radix, JJ., concur.