| Matter of Newcomb v Middle Country Cent. Sch.Dist. |
| 2015 NY Slip Op 03845 [128 AD3d 701] |
| May 6, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Raymond Newcomb et al.,Appellants, v Middle Country Central School District,Respondent. |
Law Offices of Paul A. Montuori, P.C., Mineola, N.Y., for appellant.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale,N.Y. (Laura A. Endrizzi and Christine Glasser of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leaveto serve a late notice of claim or to deem a late notice of claim timely served nunc protunc, the petitioners appeal from an order of the Supreme Court, Suffolk County(Tarantino, Jr., J.), dated May 13, 2014, which denied the petition and dismissed theproceeding.
Ordered that the order is affirmed, with costs.
In determining whether to grant a petition for leave to serve a late notice of claim orto deem a late notice of claim timely served nunc pro tunc, a court must consider whether(1) the public corporation acquired actual knowledge of the essential facts constitutingthe claim within 90 days after the claim arose or a reasonable time thereafter, (2) theclaimant was an infant at the time the claim arose and, if so, whether there was a nexusbetween the claimant's infancy and the delay in service of a notice of claim, (3) theclaimant demonstrated a reasonable excuse for the failure to serve a timely notice ofclaim and for the delay in filing the petition, and (4) the delay would substantiallyprejudice the public corporation in its defense on the merits (see Education Law§ 3813 [2-a]; General Municipal Law § 50-e [5]; Matter of Hampson v ConnetquotCent. Sch. Dist., 114 AD3d 790, 790 [2014]; Matter of Destine v City of NewYork, 111 AD3d 629, 629 [2013]; Matter of Avalos v City of N.Y. Bd. of Educ., 67 AD3d675, 675-676 [2009]). The most important factor, based on its placement in thestatute and its relation to other relevant factors, is whether the public corporationacquired actual notice of the essential facts constituting the claim within 90 days after theaccrual of the claim or within a reasonable time thereafter (see General MunicipalLaw § 50-e [5];Matter of Devivo v Town of Carmel, 68 AD3d 991, 991-992 [2009]; Matter of Felice v Eastport/SouthManor Cent. School Dist., 50 AD3d 138, 147 [2008]).
Here, the petitioners failed to establish that the respondent, Middle Country CentralSchool District (hereinafter the School District), received actual knowledge of theessential facts constituting the claim within 90 days after the accrual of the claim or areasonable time thereafter. Specifically, the petitioners allege that a sign placed on thesidewalk at the intersection where the incident occurred was a proximate cause of theirinjuries. That sign allegedly advertised a musical [*2]production to be performed at a high school within theSchool District. Even assuming that the School District was responsible for theplacement of the sign, the petitioners failed to establish that the School District becameaware, within 90 days after the claim accrued or a reasonable time thereafter, that theplacement of the sign was connected with the happening of the accident in a way thatwould give rise to liability on the part of the School District (see Matter of Mitchell v City ofNew York, 77 AD3d 754, 755 [2010]; Matter of Devivo v Town ofCarmel, 68 AD3d at 992; Matter of Wright v City of New York, 66 AD3d 1037,1038 [2009]). Moreover, the petitioners failed to demonstrate that their delay in serving anotice of claim would not substantially prejudice the School District's ability to defendagainst the claim on the merits. Accordingly, the Supreme Court did not improvidentlyexercise its discretion in denying the petition and dismissing the proceeding (see Matter of Murray v Village ofMalverne, 118 AD3d 798, 800 [2014]; Matter of Manuel v Riverhead Cent. Sch. Dist., 116 AD3d1048, 1050 [2014]; Matter of Hampson v Connetquot Cent. Sch. Dist., 114AD3d at 792). Balkin, J.P., Chambers, Miller and Hinds-Radix, JJ., concur. [PriorCase History: 2014 NY Slip Op 31320(U).]