| Matter of Fox v New York City Dept. of Educ. |
| 2015 NY Slip Op 00759 [124 AD3d 887] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Jeanette Fox, Individually and asMother and Natural Guardian of Jazmeene Fox, an Infant, Appellant, v NewYork City Department of Education, Respondent. |
Siler & Ingber, LLP, Mineola, N.Y. (Maria Nanis of counsel), forappellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo andTerri Feinstein Sasanow of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leaveto serve a late notice of claim, Jeanette Fox, individually and as mother and naturalguardian of the infant Jazmeene Fox, appeals from an order of the Supreme Court,Queens County (Kerrigan, J.), entered May 16, 2014, which denied the petition anddismissed the proceeding.
Ordered that the order is modified, on the law and in the exercise of discretion, bydeleting the provision thereof denying that branch of the petition which was for leave toserve a late notice of claim on behalf of Jazmeene Fox and substituting therefor aprovision granting that branch of the petition; as so modified, the order is affirmed, withcosts to the petitioner.
The petitioner commenced this proceeding for leave to serve a late notice of claimagainst the New York City Department of Education (hereinafter the DOE) in herindividual capacity and as mother and natural guardian of her child, Jazmeene Fox(hereinafter Jazmeene). The Supreme Court denied the petition and dismissed theproceeding.
The Supreme Court correctly denied that branch of the petition which was for leaveto serve a late notice of claim on behalf of the petitioner, individually, since it was mademore than one year and 90 days after the cause of action accrued (see GeneralMunicipal Law § 50-i [1] [c]; Bazile v City of New York, 94 AD3d 929, 930 [2012]).However, with respect to the claims made by the petitioner on behalf of Jazmeene, thelimitations period was tolled by reason of Jazmeene's infancy (see CPLR 208;Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256, 259 [1980]).
In order to maintain a tort action against a school district, a claimant must serve anotice of claim within 90 days of the alleged injury (see Education Law§ 3813 [2]; General Municipal Law § 50-i [1]; Bazile vCity of New York, 94 AD3d at 929; Matter of Felice v Eastport/South Manor Cent. School Dist., 50AD3d 138, 143 [2008]). In determining whether to grant leave to serve a late noticeof claim, the court must consider whether (1) the school district or its attorney orinsurance carrier acquired actual knowledge of the essential facts constituting the claimwithin 90 days after the claim arose or a reasonable time thereafter, (2) the injured partywas 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 [*2]failure toserve a timely notice of claim, and (4) the school district was substantially prejudiced bythe delay in its ability to maintain its defense on the merits (see Education Law§ 3813 [2-a]; General Municipal Law § 50-e [5]; Williams v Nassau County Med.Ctr., 6 NY3d 531, 535 [2006]). Upon consideration of these factors in theinstant case, the Supreme Court improvidently exercised its discretion in denying thatbranch of the petition which was for leave to serve a late notice of claim on behalf ofJazmeene.
A notice of claim dated February 16, 2011, was served on the City of New Yorkwithin 90 days after the subject accident. Under the circumstances of this case, the DOEacquired actual knowledge of the essential facts constituting Jazmeene's claim within 90days after the accident because the same attorney from the office of the New York CityCorporation Counsel who represented the DOE was involved in defending the identicalclaims asserted against the City (see Education Law § 3813 [2-a];Matter of Billman v Town ofDeerpark, 73 AD3d 1039, 1039-1040 [2010]). Thus, the petitioner met herinitial burden of showing a lack of prejudice (cf. Williams v Nassau County Med.Ctr., 6 NY3d at 539; Matter of Felice v Eastport/South Manor Cent. SchoolDist., 50 AD3d at 152), and the DOE failed to demonstrate that it was prejudiced bythe delay in commencing this proceeding (see Matter of Billman v Town ofDeerpark, 73 AD3d at 1040).
While the petitioner failed to provide a reasonable excuse for the failure to timelycomply with the provisions of General Municipal Law § 50-e (see Matter of Guminiak v City ofMount Vernon Indus. Dev. Agency, 68 AD3d 1111 [2009]; Matter of Gobardhan v City ofNew York, 64 AD3d 705, 706 [2009]), the absence of an excuse is not fatalwhere the DOE had actual knowledge of the essential facts constituting the claim, andthere was an absence of prejudice (see Matter of Bonaguro v City of New York, 122 AD3d731 [2014]; Matter of Violav Ronkonkoma Middle Sch., 107 AD3d 1009, 1010 [2013]). Accordingly, thatbranch of the petition which was for leave to serve a late notice of claim on behalf ofJazmeene should have been granted. Rivera, J.P., Hall, Austin and Cohen, JJ.,concur.