Opinion
82 CA 19-01320
08-20-2020
In the Matter of MARY BETH B., as Mother and Natural Guardian of J.B., Claimant-Respondent, v. WEST GENESEE CENTRAL SCHOOL DISTRICT, Respondent-Appellant.
THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (CHARLES C. SPAGNOLI OF COUNSEL), FOR RESPONDENT-APPELLANT. COZEN O'CONNOR, NEW YORK CITY (CHRISTOPHER C. FALLON, JR., OF COUNSEL), AND CHERUNDOLO LAW FIRM, SYRACUSE, FOR CLAIMANT-RESPONDENT.
THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (CHARLES C. SPAGNOLI OF COUNSEL), FOR RESPONDENT-APPELLANT.
COZEN O'CONNOR, NEW YORK CITY (CHRISTOPHER C. FALLON, JR., OF COUNSEL), AND CHERUNDOLO LAW FIRM, SYRACUSE, FOR CLAIMANT-RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs and the application is denied in its entirety.
Memorandum: Respondent appeals from that part of an order that granted claimant's application for leave to serve a late notice of claim with respect to those claims asserted on behalf of her child following a March 2016 assault of the child by another student. We agree with respondent that Supreme Court abused its discretion in granting that part of the application (see Dalton v. Akron Cent. Schools , 107 A.D.3d 1517, 1518, 966 N.Y.S.2d 787 [4th Dept. 2013], affd 22 N.Y.3d 1000, 979 N.Y.S.2d 559, 2 N.E.3d 928 [2013] ). We therefore reverse the order insofar as appealed from and deny the application in its entirety.
" ‘In determining whether to grant such leave, the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality’ " ( Tate v. State Univ. Constr. Fund , 151 A.D.3d 1865, 1865, 58 N.Y.S.3d 783 [4th Dept. 2017] ; see Matter of Friend v. Town of W. Seneca , 71 A.D.3d 1406, 1407, 895 N.Y.S.2d 895 [4th Dept. 2010] ; see generally General Municipal Law § 50-e [5] ). Initially, claimant failed to establish a reasonable excuse for her failure to serve a timely notice of claim (see Folmar v. Lewiston-Porter Cent. School Dist. , 85 A.D.3d 1644, 1645, 925 N.Y.S.2d 730 [4th Dept. 2011] ). Even if claimant was " ‘initially unaware of the severity of [her child's] injuries’ " ( Kennedy v. Oswego City Sch. Dist. , 148 A.D.3d 1790, 1791, 50 N.Y.S.3d 229 [4th Dept. 2017] ), as claimant argued in her application, she conceded in her reply affidavit that the child's neurologist directed that the child be homeschooled as a result of seizures and blackouts in November 2016. Claimant "did not seek leave to serve a late notice of claim until [two years after that diagnosis] ..., and [s]he failed to offer a reasonable excuse for the [post-diagnosis] delay" ( id. ). Further, claimant failed to submit "supporting medical evidence explaining why the possible permanent effects of the injury took so long to become apparent and be diagnosed" ( Diez v. Lewiston-Porter Cent. Sch. Dist. , 140 A.D.3d 1665, 1666, 34 N.Y.S.3d 283 [4th Dept. 2016] [internal quotation marks omitted] ). There is also "no evidence in the record that [the child's] infancy made it more difficult to diagnose the possible permanence of her injury" ( Matter of Felice v. Eastport/South Manor Cent. School Dist. , 50 A.D.3d 138, 151, 851 N.Y.S.2d 218 [2d Dept. 2008] ).
A claimant's failure to demonstrate a reasonable excuse for the delay "is not fatal where ... actual notice was had and there is no compelling showing of prejudice to [respondent]" ( Shaul v. Hamburg Cent. Sch. Dist. , 128 A.D.3d 1389, 1389, 8 N.Y.S.3d 522 [4th Dept. 2015] [internal quotation marks omitted] ). However, a respondent's "knowledge of the accident and the injury, without more, does not constitute actual knowledge of the essential facts constituting the claim" ( Folmar , 85 A.D.3d at 1645, 925 N.Y.S.2d 730 [internal quotation marks omitted]; see Kennedy , 148 A.D.3d at 1791, 50 N.Y.S.3d 229 ; Diez , 140 A.D.3d at 1666, 34 N.Y.S.3d 283 ). Here, claimant described the assault on her child as "unprovoked," and the accident report prepared contemporaneously by a school nurse, which claimant submitted with her reply affidavit, describes a single punch resulting only in a headache and swollen face. Inasmuch as "an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act" ( Mirand v. City of New York , 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 [1994] ; see Hale v. Holley Cent. Sch. Dist. , 159 A.D.3d 1509, 1510, 72 N.Y.S.3d 700 [4th Dept. 2018], lv denied 31 N.Y.3d 913, 2018 WL 3152458 [2018] ), we agree with respondent that the known facts failed to give "reasonable notice from which it could be inferred that a potentially actionable wrong had been committed by [respondent]" ( Matter of Lavender v. Garden City Union Free School Dist. , 93 A.D.3d 670, 671, 939 N.Y.S.2d 568 [2d Dept. 2012] ; see Brown v. City of Buffalo , 100 A.D.3d 1439, 1440, 954 N.Y.S.2d 303 [4th Dept. 2012] ).
Finally, with respect to the remaining factor, substantial prejudice, "the burden initially rests on the [claimant] to show that the late notice will not substantially prejudice the public corporation. Such a showing need not be extensive, but the [claimant] must present some evidence or plausible argument that supports a finding of no substantial prejudice" ( Matter of Newcomb v. Middle Country Cent. Sch. Dist. , 28 N.Y.3d 455, 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016], rearg denied 29 N.Y.3d 963, 51 N.Y.S.3d 496, 73 N.E.3d 853 [2017] ). Although claimant's assertion that the child was interviewed by the school resource officer and examined by a school nurse could constitute a "plausible argument that supports a finding of no substantial prejudice" ( id. ), that assertion was made for the first time in claimant's reply papers. Claimant's initial submission contained only a conclusory allegation, unsupported by any factual detail, that respondent conducted an investigation. Inasmuch as claimant could not meet her initial burden by relying on evidence submitted for the first time in her reply papers (see GJF Constr. Corp. v. Cosmopolitan Decorating Co., Inc. , 35 A.D.3d 535, 535, 828 N.Y.S.2d 409 [2d Dept. 2006] ), the burden never shifted to respondent to show substantial prejudice.