| Matter of Quinn v Wallkill Cent. Sch. Dist. Bd. ofEduc. |
| 2015 NY Slip Op 06825 [131 AD3d 1063] |
| September 16, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Timothy Quinn et al., Individually andas Parents of A.Q., an Infant, Appellants, v Wallkill Central School DistrictBoard of Education et al., Respondents. |
Peter D. Hoffman, Katonah, N.Y. (Nikki D. Woods of counsel), for appellants.
Marks, O'Neill, O'Brien, Doherty & Kelley, P.C. (Congdon, Flaherty,O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Kathleen D.Foley], of counsel), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leaveto serve a late notice of claim, the petitioners appeal from an order of the Supreme Court,Orange County (Bartlett, J.), dated May 14, 2014, which denied the petition.
Ordered that the order is affirmed, with costs.
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 v City of New York, 94AD3d 929 [2012]; Matterof Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 143[2008]). In determining whether to grant leave to serve a late notice of claim, the courtmust consider whether (1) the school district or its attorney or insurance carrier acquiredactual knowledge of the essential facts constituting the claim within 90 days after theclaim arose or a reasonable time thereafter, (2) the injured party was an infant at the timethe claim arose and, if so, whether there was a nexus between the infancy and the failureto serve a timely notice of claim, (3) the petitioner demonstrated a reasonable excuse forthe failure to serve a timely notice of claim, and (4) the school district was substantiallyprejudiced by the delay in its ability to maintain its defense on the merits (seeEducation Law § 3813 [2-a]; General Municipal Law § 50-e[5]; Williams v Nassau CountyMed. Ctr., 6 NY3d 531, 535 [2006]).
Here, the evidence submitted by the petitioners did not establish that the respondentshad actual knowledge of the essential facts constituting the claim, that is, facts whichwould demonstrate a connection between the happening of the incident and anynegligence on the part of the respondents (see Matter of Placido v County of Orange, 112 AD3d 722[2013]). Nor did the petitioners establish a nexus between the infant petitioner's infancyand their failure to timely serve a notice of claim, or demonstrate a reasonable excuse fortheir delay (see Matter ofMagana v Westchester County Health Care Corp., 89 AD3d 851, 852 [2011]).Finally, the petitioners failed to demonstrate that the respondents would not besubstantially prejudiced in their ability to maintain a defense on the merits (see Williams v Jamaica Hosp. Med.Ctr., 124 AD3d 636, 638 [2015]).
[*2] In light of our determination, we need not reach the respondents' remainingcontention.
Accordingly, the Supreme Court did not improvidently exercise its discretion indenying the petition for leave to serve a late notice of claim. Chambers, J.P., Hall, Cohenand Maltese, JJ., concur.