| Matter of Viola v Ronkonkoma Middle Sch. |
| 2013 NY Slip Op 04819 [107 AD3d 1009] |
| June 26, 2013 |
| Appellate Division, Second Department |
| In the Matter of Liana Viola et al.,Respondents, v Ronkonkoma Middle School et al., Respondents, andConnetquot Central School District, Appellant. |
—[*1] The Harrison Law Group, P.C., Massapequa, N.Y. (Brett J. Harrison of counsel), forpetitioners-respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave toserve a late notice of claim, the Connetquot Central School District appeals, as limited byits brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.),dated December 3, 2012, as granted that branch of the petition which was for leave toserve a late notice of claim upon it.
Ordered that the order is affirmed insofar as appealed from, with costs.
In determining whether to permit service of a late notice of claim upon a schooldistrict, the court must consider all relevant circumstances, including whether (1) theschool district acquired actual knowledge of the essential facts constituting the claimwithin 90 days of the incident or a reasonable time thereafter, (2) the petitioner was aninfant at the time the claim arose and, if so, whether there was a nexus between thepetitioner's infancy and the delay in service of a notice of claim, (3) the petitioner had areasonable excuse for the delay, and (4) the school district was substantially prejudicedby the delay in its ability to maintain its defense on the merits (see EducationLaw § 3813 [2-a]; General Municipal Law § 50-e [5]; Williams v Nassau County Med.Ctr., 6 NY3d 531, 538 [2006]; Matter of Diggs v Board of Educ. of City of Yonkers, 79 AD3d869, 869-870 [2010]; Matter of Avalos v City of N.Y. Bd. of Educ., 67 AD3d675 [2009]; Matter ofFormisano v Eastchester Union Free School Dist., 59 AD3d 543, 544 [2009]).
Here, the Connetquot Central School District (hereinafter the District) acquiredactual knowledge of the essential facts constituting the claim within 90 days after theclaim arose. The District's employee witnessed the infant petitioner's accident, whichoccurred during supervised cheerleading practice, and a designated school authorityprepared a medical claim form within a week after the accident (see Matter of Funkhouser v MiddleCountry Cent. Sch. Dist., 102 AD3d 689, 690 [2013]; Matter of Whittaker v New YorkCity Bd. of Educ., 71 AD3d 776, 777-778 [2010]; Matter of Leeds v Port WashingtonUnion Free School Dist., 55 AD3d 734, 735 [2008]). Furthermore, the infantpetitioner [*2]was transported from the school to thehospital to be treated for a broken arm (see Matter of McLeod v City of New York, 105 AD3d 744[2013]; Matter of Allende vCity of New York, 69 AD3d 931, 933 [2010]; Matter of Zimmet vHuntington Union Free School Dist. [District No. 3], 187 AD2d 436 [1992]). Sincethe District acquired timely knowledge of the essential facts constituting the petitioners'claim, the petitioners met their initial burden of showing a lack of prejudice (see Matter of Joy v County ofSuffolk, 89 AD3d 1025, 1026 [2011]; Matter of Allende v City of NewYork, 69 AD3d at 933; Matter of Felice v Eastport/South Manor Cent. School Dist., 50AD3d 138, 152 [2008]). The District's conclusory assertions of prejudice, basedsolely on the petitioners' two-month delay in serving the notice of claim, wereinsufficient to rebut the petitioners' showing (see Matter of Rodriguez v Woodhull Sch., 105 AD3d 1050[2013]; Matter of Joy v County of Suffolk, 89 AD3d at 1026; Jordan v City of New York, 41AD3d 658, 660 [2007]).
While the petitioners' excuses for their failure to serve a timely notice of claim werenot reasonable (see Matter ofWright v City of New York, 99 AD3d 717, 718 [2012]; Rowe v Nassau Health CareCorp., 57 AD3d 961, 963 [2008]; Matter of Termini v Valley Stream Union Free School Dist. No.13, 2 AD3d 866, 868 [2003]), the absence of a reasonable excuse is not fatal tothe petition where, as here, there was actual notice and an absence of prejudice (see Matter of Lavender v GardenCity Union Free School Dist., 93 AD3d 670, 671 [2012]).
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. Rivera, J.P., Dickerson, Leventhal and Lott, JJ., concur.