| Claud v West Babylon Union Free Sch. Dist. |
| 2013 NY Slip Op 06339 [110 AD3d 663] |
| October 2, 2013 |
| Appellate Division, Second Department |
| Brittany Claud, Respondent, et al., Plaintiff, v WestBabylon Union Free School District, Appellant. |
—[*1] Gruenberg Kelly Della, P.C., Ronkonkoma, N.Y. (John Aviles of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Suffolk County(Martin, J.), dated April 9, 2012, as, in effect, denied that branch of its motion which wasto dismiss the complaint insofar as asserted on behalf of Brittany Claud for failure toserve a timely notice of claim and granted that branch of the plaintiffs' cross motionwhich was for leave to serve a late notice of claim on behalf of Brittany Claud.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court did not improvidently exercise its discretion in permitting theplaintiffs to serve a late notice of claim on behalf of the infant plaintiff. The plaintiffsdemonstrated that the defendant acquired actual knowledge of the essential factsconstituting the claim within 90 days after the claim arose or within a reasonable timethereafter (see Education Law § 3813 [2-a]; General Municipal Law§ 50-e [5]; Matter ofDevivo v Town of Carmel, 68 AD3d 991 [2009]; Matter of Avalos v City of N.Y.Bd. of Educ., 67 AD3d 675 [2009]; Matter of Formisano v Eastchester Union Free School Dist., 59AD3d 543, 545 [2009]). "In order to have actual knowledge of the essential factsconstituting the claim, the public corporation must have knowledge of the facts thatunderlie the legal theory or theories on which liability is predicated in the notice of claim;the public corporation need not have specific notice of the theory or theories themselves"(Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d 138, 148 [2008]; see Williams v Nassau CountyMed. Ctr., 6 NY3d 531, 539 [2006]; Matter of Leeds v Port Washington Union Free School Dist., 55AD3d 734, 735 [2008]).
Here, the infant plaintiff alleged that she was specifically instructed by her teacher togo into the girls' bathroom to tell some students in the bathroom to keep quiet, and that,in the course of complying with that request, her finger got caught in her classroom doorand was injured. Before the infant plaintiff was taken to the hospital by ambulance, herteacher told her that he would give her a dollar for every stitch she had, and he latercalled the infant plaintiff's home to inquire about her. During that telephone call, theteacher and the infant plaintiff's mother allegedly discussed a door at the school.Although, as the dissent points out, the meaning of the teacher's comments about thedoor was not entirely clear, the comments demonstrated some awareness that [*2]a problem with a door at the school might have contributedto the accident. The teacher could easily have voiced concern about the infant plaintiffwithout mentioning the door at all. Additionally, the school nurse completed a medicalclaim form, detailing the accident, the injury, and the treatment provided. Under thesecircumstances, the defendant acquired actual knowledge of the essential factsconstituting the claim (seeMatter of Funkhouser v Middle Country Cent. Sch. Dist., 102 AD3d 689[2013]; Matter of Vitale vElwood Union Free School Dist., 19 AD3d 610, 611 [2005]; Bovich v East Meadow Pub.Lib., 16 AD3d 11, 19-20 [2005]).
Furthermore, the defendant will not be substantially prejudiced in maintaining adefense on the merits as a result of the plaintiffs' delay in seeking leave to serve a latenotice of claim, in light of the teacher's involvement in the incident and the nurse'sdocumentation of the accident and injuries (see Matter of Funkhouser v MiddleCountry Cent. Sch. Dist., 102 AD3d at 689; Matter of Hursala v Seaford Middle School, 46 AD3d892, 893 [2007]). "[T]he absence of a reasonable excuse for the delay does not barthe granting of . . . leave to serve a late notice of claim where, as here, thereis actual knowledge and an absence of prejudice" (Matter of St. Paul Guardian Ins. Corp. v Pocatello Fire Dist., 90AD3d 761, 762 [2011]; seeMatter of Whittaker v New York City Bd. of Educ., 71 AD3d 776, 778 [2010]).Skelos, J.P., Sgroi and Hinds-Radix, JJ., concur.
Chambers, J., dissents, and votes to reverse the order insofar as appealed from, grantthat branch of the defendant's motion which was to dismiss the complaint insofar asasserted on behalf of Brittany Claud for failure to serve a timely notice of claim, anddeny that branch of the plaintiffs' cross motion which was for leave to serve a late noticeof claim on behalf of Brittany Claud, with the following memorandum: I respectfullydissent.
On November 19, 2008, Mr. McKeown, a third-grade teacher at Tooker AvenueSchool within the West Babylon Union Free School District (hereinafter the SchoolDistrict), asked the infant plaintiff and her friend Krista to tell some students in the girls'bathroom to quiet down. The infant plaintiff opened the classroom door, and Kristafollowed behind her, holding the door open. As Krista released the door, it closed on theinfant plaintiff's little finger, which she had left in the "hinge" of the door, partiallysevering it. She ran down to the nurse's office, and was then taken to the hospital.
On December 16, 2010, the infant plaintiff, by her mother, and her motherindividually, filed a notice of claim upon the School District without leave of court. Theplaintiffs then commenced this action, inter alia, to recover damages for personalinjuries. Thereafter, on November 7, 2011, in response to the School District's motion todismiss the complaint based on their failure to timely serve a notice of claim, theplaintiffs cross-moved for leave to serve a late notice of claim, submitting the samenotice of claim previously filed.
In determining whether to permit service of a late notice of claim, the court mustconsider all relevant facts and circumstances, including whether (1) the publiccorporation (or its attorney or insurance carrier) acquired actual knowledge of theessential facts constituting the claim within 90 days of the incident 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 in service of a notice ofclaim, (3) the claimant had a reasonable excuse for the delay, and (4) the publiccorporation was prejudiced by the delay in its ability to maintain its defense on the merits(see General Municipal Law § 50-e [5]; Matter of Avalos v City of N.Y.Bd. of Educ., 67 AD3d 675, 675-676 [2009]; Matter of Formisano v EastchesterUnion Free School Dist., 59 AD3d 543, 544 [2009]; Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138, 147-153 [2008]).
"The presence or absence of any one factor is not necessarily determinative, butwhether the public corporation had actual knowledge of the essential facts constitutingthe claim is[*3]'the most important, based upon itsplacement in the statute and its relation to other relevant factors' " (Matter of Nurse v City of NewYork, 87 AD3d 543, 544 [2011], quoting Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d at 147 [citation omitted]). "In order to haveactual knowledge of the essential facts constituting the claim, the public corporation musthave knowledge of the facts that underlie the legal theory or theories on which liability ispredicated in the notice of claim; the public corporation need not have specific notice ofthe theory or theories themselves" (Matter of Felice v Eastport/South Manor Cent.School Dist., 50 AD3d at 148). In other words, the municipal corporation must haveknowledge of facts which demonstrate some connection between the happening of theaccident and any negligence on its part (see Matter of Wright v City of New York, 66 AD3d 1037,1038 [2009]).
The manner in which the infant plaintiff was injured did not suggest in any way atheory of how the School District was liable, whether based on negligent supervision,negligent hiring/training, or the existence of a dangerous or defective condition in thedoor. To the contrary, it suggested only that her injury was the result of an accident, anda fairly common one at that, the infant plaintiff having carelessly left her hand near thehinge of the classroom door (see Ventura v New York City Dept. of Educ., 2012NY Slip Op 31177[U] [Sup Ct, Queens County 2012]). The majority notes that, asrecounted in the General Municipal Law § 50-h hearing testimony of the infantplaintiff's mother, she discussed a door with McKeown. However, it is not clear fromthat hearsay testimony whether McKeown was talking about the classroom door, thebathroom door, or some other door at the school. Moreover, during that conversation,McKeown gave no indication that whichever door he was talking about was in adefective or dangerous condition. McKeown was "upset about the door," because "theywanted to keep [it] locked for some reason," the mother "guess[ed]," in order "to preventthis." When the School District's counsel asked the mother to clarify her testimony, shesaid that she could not because she did not quite understand what McKeown meant, andthat it was her recollection that he was just "voicing his concern" about the infantplaintiff. Since it is unclear from the mother's testimony which door McKeown wastalking about, and since the mother conceded that she did not understand the substance ofMcKeown's comment about that door, McKeown's comment cannot form the basis for adetermination that the School District acquired actual knowledge of the essential factsconstituting the claim.
The majority points out that the school nurse completed a medical form, but itdetailed only the occurrence of an accident, stating "pinky of right hand accidently gotcaught in door and was closed on it." A report merely describing the circumstancessurrounding the accident, with no connection between the infant plaintiff's injuries andthe allegedly negligent conduct of the School District, is insufficient to provide actualknowledge of the essential facts (see Matter of Wright v City of New York, 66AD3d at 1038; Matter of Castrov Clarkstown Cent. School Dist., 65 AD3d 1141, 1142 [2009]; Matter of Scolo v Central IslipUnion Free School Dist., 40 AD3d 1104, 1106 [2007]).
The fact that the infant plaintiff received stitches to her little finger and thatemployees of the School District inquired about her condition following the accidentsuggests only that the School District had knowledge of the accident itself and theseriousness of her injury, which does not satisfy the actual knowledge factor since thosefacts do not also provide the School District with knowledge of the essential factsconstituting the claim (see Matter of Felice v Eastport/South Manor Cent. SchoolDist., 50 AD3d at 155).
In fact, the plaintiffs themselves have shifted their theory of liability. In the notice ofclaim, the plaintiffs never alleged the existence of a dangerous or defective condition inthe door, only that the School District was negligent in its supervision or hiring/trainingof its staff. It was in the complaint that the plaintiffs first alleged that the door was in adangerous or defective condition. The plaintiffs' uncertainty as to their theory of liability,both at the time they improperly filed their notice of claim without leave and then whenthey sought leave, only underscores that the School District could not have been onnotice as to the facts underlying the legal theory of liability from the mere happening ofthe accident years earlier (seeDecoteau v City of New York, 97 AD3d 527 [2012]; see generally Finke v City of GlenCove, 55 AD3d 785 [2008]; Bryant v City of New York, 188 AD2d 445[1992]).
Further, the plaintiffs failed to carry their burden of demonstrating that the delay[*4]would not substantially prejudice the School Districtin maintaining its defense on the merits (see Matter of Taylor v County of Suffolk, 90 AD3d 769,770 [2011]). Since the manner in which the infant plaintiff was injured did not suggestany negligence on the part of the School District, it had no reason to conduct a promptinvestigation, particularly into the condition of the classroom door at issue (seeMatter of Scolo v Central Islip Union Free School Dist., 40 AD3d at 1106;Matter of Price v Board of Educ. of City of Yonkers, 300 AD2d 310, 311[2002]).
Finally, the plaintiffs failed to provide a reasonable excuse for their failure to complywith the notice of claim requirement, as the majority tacitly acknowledges. There is noconnection between her infancy and the delay in filing the notice of claim (see Matter of Doe v Goshen Cent.School Dist., 13 AD3d 526, 526-527 [2004]). Ignorance of the notice of claimrequirement is not a reasonable excuse (see e.g. Matter of Wright v City of New York, 99 AD3d717, 719 [2012]).
Accordingly, I respectfully vote to reverse the order insofar as appealed from, todeny that branch of the plaintiffs' cross motion which was for leave to serve a late noticeof claim, and to grant the School District's motion to dismiss the complaint.