| Matter of Stark v West Hempstead Union Free Sch.Dist. |
| 2015 NY Slip Op 02770 [127 AD3d 765] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Kevin Stark,Respondent, v West Hempstead Union Free School District,Appellant. |
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale,N.Y. (Michael T. Reagan of counsel), for appellant.
Arnold E. DiJoseph, P.C., New York, N.Y., for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leaveto serve a late notice of claim, West Hempstead Union Free School District appeals froman order of the Supreme Court, Nassau County (Brown, J.), entered August 1, 2014,which granted the petition and deemed the late notice of claim timely served nunc protunc.
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 permit service of a late notice of claim, the court mustconsider all relevant facts and circumstances, including whether (1) the petitioner had areasonable excuse for the delay, (2) the public corporation acquired actual knowledge ofthe essential facts constituting the claim within 90 days of the incident or a reasonabletime thereafter, and (3) the public corporation was prejudiced by the delay in its ability tomaintain 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]; Matter of Csaszar vCounty of Dutchess, 95 AD3d 1009, 1010 [2012]; Bazile v City of New York, 94AD3d 929, 929-930 [2012]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50AD3d 138 [2008]).
The petitioner failed to set forth a reasonable excuse for his delay in serving thenotice of claim and petition. Lack of awareness of the possibility of a lawsuit is not areasonable excuse for delay in serving a notice of claim (see Meyer v County of Suffolk,90 AD3d 720, 721 [2011]; Bucknor v New York City Health & Hosps. Corp. [QueensHosp. Ctr.], 44 AD3d 811, 813 [2007]; Matter of Flores v County of Nassau, 8 AD3d 377, 378[2004]). Further, even if the petitioner, as alleged, served the notice of claim on theappellant 78 days after the expiration of the 90-day statutory period, the late notice ofclaim did not provide the appellant with actual knowledge of the essential factsconstituting the claim within a reasonable time after the expiration of the statutory period(see Matter of Sanchez v City ofNew York, 116 AD3d 703, 704 [2014]; Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d790, 791 [2014]; Matter ofValila v Town of Hempstead, 107 AD3d 813, 815 [2013]). Moreover, theevidence submitted by the petitioner along with his petition failed to establish that theappellant acquired actual knowledge of the essential facts constituting the claim within90 days following accrual or a reasonable time thereafter (see Williams v NassauCounty Med. Ctr., 6 NY3d at 535; Matter of [*2]Anderson v Town ofOyster Bay, 101 AD3d 708, 709 [2012]; Matter of Csaszar v County ofDutchess, 95 AD3d at 1010; Matter of Doersam v County of Suffolk, 89 AD3d 1021,1021 [2011]).
Finally, the petitioner failed to demonstrate that the appellant was not substantiallyprejudiced by the six-month delay between the time of the incident and the time of thecommencement of this proceeding. Notably, the delay prevented the appellant fromconducting a thorough and immediate investigation of the incident and promptlyobtaining a medical examination of the petitioner (see Peters-Heenpella v Wynn, 105 AD3d 725, 726 [2013];Matter of Jackson v NewburghEnlarged City School Dist., 85 AD3d 1031, 1032 [2011]). Balkin, J.P.,Leventhal, Dickerson and Miller, JJ., concur.