| Matter of Manuel v Riverhead Cent. Sch. Dist. |
| 2014 NY Slip Op 02939 [116 AD3d 1048] |
| April 30, 2014 |
| Appellate Division, Second Department |
| In the Matter of Zachary Manuel et al.,Respondents, v Riverhead Central School District,Appellant. |
—[*1] David Fraiden, Bronx, N.Y., for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave toserve a late notice of claim, the Riverhead Central School District appeals from an orderof the Supreme Court, Suffolk County (Martin, J.), dated December 5, 2013, whichgranted the petition.
Ordered that the order is reversed, on the facts and as a matter of discretion, withcosts, and the petition is denied.
On April 22, 2013, the infant Zachary Manuel (hereinafter Zachary), then a studentin the appellant Riverhead Central School District, allegedly was injured during physicaleducation class when he hurt his knee during two-hand touch football. Over four monthslater, Zachary and his mother commenced this proceeding for leave to serve a late noticeof claim on the appellant.
The Supreme Court improvidently exercised its discretion in granting the petition forleave to serve a late notice of claim on behalf of Zachary and his mother.
The key factors to be considered in determining whether to grant leave to serve a latenotice of claim are (1) whether the claimant or claimants demonstrated a reasonableexcuse for the failure to timely serve a notice of claim, (2) whether one or more of theclaimants was an infant at the time the claim arose and, if so, whether there was a nexusbetween the infancy and the delay in service of a notice of claim, (3) whether the schooldistrict acquired actual knowledge of the essential facts constituting the claim within 90days of the incident or a reasonable time thereafter, and (4) whether the school districtwas substantially prejudiced by the delay in its ability to maintain its defense on themerits (see Education Law § 3813 [2-a]; General Municipal Law §50-e [5]; Williams v NassauCounty Med. Ctr., 6 NY3d 531, 538 [2006]; Matter of Destine v City of New York, 111 AD3d 629[2013]; Bazile v City of NewYork, 94 AD3d 929, 929-930 [2012]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50AD3d 138, 147-153 [2008]).[*2]
Here, Zachary and his mother did not proffersufficient proof to establish a reasonable excuse for their failure to serve a timely noticeof claim upon the appellant (seeMatter of Klass v City of New York, 103 AD3d 800, 801 [2013]; Matter of Taylor v County ofSuffolk, 90 AD3d 769, 770 [2011]; Matter of Aliberti v City ofYonkers, 302 AD2d 456 [2003]). Furthermore, Zachary's infancy, without anyshowing of a nexus between the infancy and the delay, was insufficient to constitute areasonable excuse (seeRobertson v Somers Cent. School Dist., 90 AD3d 1012, 1013 [2011]). Inaddition, while a school official prepared an accident claim form the day of the incidentand a school medical claim form was filled out the day following the incident, thosereports, which merely indicated that Zachary hurt his right knee playing two-hand touchfootball during physical education class, did not establish that the appellant had actualknowledge within 90 days of the incident or a reasonable time thereafter, of the essentialfacts underlying the claims of negligent supervision and that the school field constituteda defective and dangerous condition (see Bazile v City of New York, 94 AD3d at930; Matter of Castro vClarkstown Cent. School Dist., 65 AD3d 1141, 1142-1143 [2009]; Matter of Scolo v Central IslipUnion Free School Dist., 40 AD3d 1104 [2007]). Accordingly, the appellanthad no reason to conduct a prompt investigation into the purported negligent supervisionand the alleged dangerous condition of the field (see Matter of Ryder v Garden CitySchool Dist., 277 AD2d 388, 389 [2000]). Finally, Zachary and his mother failed toestablish that the approximately one-month delay after the expiration of the 90-daystatutory period would not substantially prejudice the appellant in maintaining a defenseon the merits (see Matter of Castro v Clarkstown Cent. School Dist., 65 AD3d at1143; Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d 138, 152 [2008]). Mastro,J.P., Hall, Austin, Sgroi and Duffy, JJ., concur.