| Matter of Lewis v East Ramapo Cent. Sch. Dist. |
| 2013 NY Slip Op 06366 [110 AD3d 720] |
| October 2, 2013 |
| Appellate Division, Second Department |
| In the Matter of Janvier Lewis, Respondent, v EastRamapo Central School District, Appellant. |
—[*1] Klein & Folchetti, Port Chester, N.Y. (Robert W. Folchetti of counsel), forrespondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave toserve a late notice of claim, East Ramapo Central School District appeals from an orderof the Supreme Court, Rockland County (Jamieson, J.), dated July 19, 2012, whichgranted the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, the petition is denied, and the proceeding is dismissed.
In determining whether to grant leave to serve a late notice of claim upon a schooldistrict, the court must consider whether (1) the school district acquired actual knowledgeof the essential facts constituting the claim within 90 days after the claim arose or areasonable time thereafter, (2) the petitioner was an infant at the time the claim arose and,if so, whether there was a nexus between the petitioner's infancy and the failure to serve atimely notice of claim, (3) the petitioner demonstrated a reasonable excuse for the failureto serve a timely notice of claim, 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, 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]; Troy v Town of Hyde Park, 63AD3d 913, 914 [2009]). Actual knowledge of the essential facts underlying theclaim means "knowledge of the facts that underlie the legal theory or theories on whichliability is predicated in the [proposed] notice of claim; the public corporation need nothave specific notice of the theory or theories themselves" (Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138, 148 [2008]).
The only excuse offered by the petitioner for her failure to serve a timely notice ofclaim was that her parents did not take any steps to enforce her rights or remedies. Evenif the petitioner's assertions were sufficient to establish a nexus between her infancy andthe failure to serve a timely notice of claim (cf. Doe v North Tonawanda Cent. School Dist., 88 AD3d1289 [2011]), the [*2]petitioner failed to explain the15-month delay between the time she reached the age of majority and her commencementof this proceeding (see Matter of Carpenter v Town of Babylon, 150 AD2d 373[1989]).
Furthermore, the petitioner failed to demonstrate that the East Ramapo CentralSchool District (hereinafter the appellant) acquired timely, actual knowledge of theessential facts constituting her claim that as a result of the appellant's negligentsupervision and failure to respond, the petitioner, then a student at a high school ownedand operated by the appellant, was assaulted by another student in the area of the schoolwhere the students boarded the buses. There was no evidence in the record to support thepetitioner's hearsay allegation that her parents made this claim to the assistant principal ofthe school directly after the incident (see Matter of Keyes v City of New York, 89 AD3d 1086[2011]; Matter of Termini vValley Stream Union Free School Dist. No. 13, 2 AD3d 866, 867 [2003]). Thepetitioner contends that the appellant acquired actual knowledge of the essential factsconstituting the claim when, directly after the incident, she informed the appellant'ssocial worker and nurse that there were no school personnel in the boarding area whenshe was assaulted. However, even if the petitioner informed the appellant's social workerand nurse that there were no school personnel in the boarding area, this does not establishthat the petitioner reported her claim to a school official with a duty to investigate thealleged negligence (see Levette v Triborough Bridge & Tunnel Auth., 207 AD2d330, 331 [1994]; Caselli v City of New York, 105 AD2d 251, 255 [1984]).Moreover, the parent notification form prepared by the school's nurse informing thepetitioner's parents of the petitioner's injury was insufficient to apprise the appellant ofthe petitioner's claim of negligent supervision and failure to respond (see Troy v Town of HydePark, 63 AD3d 913, 914 [2009]; Matter of Jantzen v Half Hollow Hills Cent. School Dist. No. 5,56 AD3d 474, 475 [2008]; Matter of del Carmen v Brentwood Union Free School Dist., 7AD3d 620, 621 [2004]). In addition, while the appellant may have conducted adisciplinary investigation, the petitioner failed to establish that the disciplinaryinvestigation placed the appellant on notice of her claim that she was injured as a resultof the appellant's negligence (see Matter of Cattell v Town of Brookhaven, 21 AD3d896, 897 [2005]).
Finally, the petitioner did not meet her burden of rebutting the appellant's assertionsthat the three-year-and-eight-month delay between the date of the incident andcommencement of this proceeding will substantially prejudice the appellant's ability toconduct a full investigation of the facts underlying the claim (see Matter of Joseph v City of NewYork, 101 AD3d 721, 722 [2012]; Matter of Werner v Nyack Union Free School Dist., 76 AD3d1026, 1027 [2010]; Matterof Formisano v Eastchester Union Free School Dist., 59 AD3d 543, 545[2009]). Accordingly, the petition should have been denied, and the proceeding isdismissed. Mastro, J.P., Balkin, Sgroi and Hinds-Radix, JJ., concur.