| Matter of Hampson v Connetquot Cent. Sch. Dist. |
| 2014 NY Slip Op 01003 [114 AD3d 790] |
| February 13, 2014 |
| Appellate Division, Second Department |
| In the Matter of Christine Hampson, Individually and asMother and Natural Guardian of Jenna Hampson, an Infant,Respondent, v Connetquot Central School District,Appellant. |
—[*1] Law Offices of Peter D. Baron, PLLC, Melville, N.Y. (Julie T. Mark of counsel), forrespondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave toserve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc,Connetquot Central School District appeals from an order of the Supreme Court, SuffolkCounty (Martin, J.), dated May 9, 2013, which granted the petition.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and the petition is denied.
In determining whether to grant leave to serve a late notice of claim or to deem a latenotice of claim timely served nunc pro tunc, the court must consider whether (1) theschool district acquired actual knowledge of the essential facts constituting the claimwithin 90 days after the claim arose or a reasonable time thereafter, (2) the injured childwas an infant at the time the claim arose and, if so, whether there was a nexus betweenthe infancy and the failure to serve a timely notice of claim, (3) the petitionerdemonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (4)the school district was substantially prejudiced by the delay in its ability to maintain itsdefense on the merits (see Education Law § 3813 [2-a]; General MunicipalLaw § 50-e [5]; Williamsv Nassau County Med. Ctr., 6 NY3d 531, 535 [2006]; Matter of Destine v City of NewYork, 111 AD3d 629 [2013]; Bazile v City of New York, 94 AD3d 929, 929-930[2012]; Matter of Diggs vBoard of Educ. of City of Yonkers, 79 AD3d 869, 869-870 [2010]). Actualknowledge of the essential facts underlying the claim means "knowledge of the facts thatunderlie the legal theory or theories on which liability is predicated in the [proposed]notice of claim; the public corporation need not have specific notice of the theory ortheories themselves" (Matter ofFelice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 148 [2008]).
Here, the petitioner failed to demonstrate a reasonable excuse for the failure to servea timely notice of claim and for the delay in filing the petition (see Matter of Bell v City of NewYork, 100 AD3d 990 [2012]). The petitioner's ignorance of the law did notconstitute a reasonable excuse (see Matter of Taylor v County of Suffolk, 90 AD3d 769,770 [2011]; Meyer v County ofSuffolk, 90 AD3d 720, [*2]721 [2011]; Matter of Vicari v Grand Ave.Middle School, 52 AD3d 838, 839 [2008]). Furthermore, the petitioner failed tosubmit any medical evidence to support her allegations that she was more concerned andpreoccupied with her daughter's alleged injuries than with retaining an attorney or thatshe did not readily appreciate the severity of her daughter's injuries (see Matter of Klass v City of NewYork, 103 AD3d 800, 801 [2013]; Matter of Taylor v County ofSuffolk, 90 AD3d at 770; Matter of Aliberti v City of Yonkers, 302 AD2d456 [2003]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50AD3d at 151). In addition, the petitioner failed to explain the additional lapse ofapproximately two months between the time she served the late notice of claim withoutcourt authorization and the commencement of the instant proceeding, inter alia, to deemthe late notice of claim timely served nunc pro tunc (see Matter of Destine v City of New York, 111 AD3d 629[2013]; Matter of Gobardhan vCity of New York, 64 AD3d 705, 706 [2009]; Matter of Camilleri v Countyof Suffolk, 190 AD2d 669 [1993]).
The petitioner also failed to demonstrate that the appellant obtained timely, actualknowledge of the essential facts constituting the claim that the appellant failed toproperly instruct, supervise, monitor, and control students during school recess. The latenotice of claim served upon the appellant approximately two months after the 90-daystatutory period had elapsed did not provide the appellant with actual knowledge of theessential facts constituting the claim within a reasonable time after the expiration of thestatutory period (see Matter ofValila v Town of Hempstead, 107 AD3d 813 [2013]). Furthermore, there wasno evidence in the record to support the petitioner's hearsay allegations that aides andteachers were aware that the students were "horsing around," warned the students to stop"horsing around," and did nothing further to control the students' behavior (see Matter of Keyes v City of NewYork, 89 AD3d 1086 [2011]). Moreover, the parent notification form preparedby the school's nurse informing the parents of the incident was insufficient to apprise theappellant of the petitioner's claim of negligent supervision (see Matter of Lewis v East RamapoCent. Sch. Dist., 110 AD3d 720 [2013]; Troy v Town of Hyde Park, 63 AD3d 913, 914 [2009]; Matter of Jantzen v Half HollowHills Cent. School Dist. No. 5, 56 AD3d 474, 475 [2008]).
The petitioner failed to submit evidence sufficient to rebut the appellant's contentionthat the delay of approximately two months after the expiration of the 90-day period inserving the notice of claim and the additional delay of approximately two months incommencing this proceeding would substantially prejudice the appellant's ability toconduct an investigation of the claim (see Matter of Destine v City of New York, 111 AD3d 629[2013]; Godfrey v City of NewRochelle, 74 AD3d 1018, 1019 [2010]; Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d at 152).
Accordingly, the Supreme Court should have denied the petition. Mastro, J.P.,Balkin, Sgroi and Hinds-Radix, JJ., concur.