Opinion
2013-06-5
In the Matter of James F. WALKER, respondent, v. RIVERHEAD CENTRAL SCHOOL DISTRICT, et al., appellants.
Ahmuty, Demers & McManus, Albertson, N.Y. (Glenn A. Kaminska and Nicholas M. Cardascia of counsel), for appellants. John G. Poli, III, P.C., Northport, N.Y., for respondent.
Ahmuty, Demers & McManus, Albertson, N.Y. (Glenn A. Kaminska and Nicholas M. Cardascia of counsel), for appellants. John G. Poli, III, P.C., Northport, N.Y., for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, Riverhead Central School District and Richard Gallo appeal from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated March 5, 2012, which granted the petition.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the petition is denied, and the proceeding is dismissed.
The Supreme Court improvidently exercised its discretion in granting the petition for leave to serve a late notice of claim upon the Riverhead Central School District (hereinafter the District). The petitioner's assertion that he did not immediately appreciate the nature and severity of his injuries until approximately nine months after the subject accident is unavailing without supporting medical evidence explaining why the possible permanent effects of the injuries took so long to become apparent and be diagnosed ( see Matter of Minkowicz v. City of New York, 100 A.D.3d 1000, 1000, 954 N.Y.S.2d 628;Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 151, 851 N.Y.S.2d 218;Matter of Lodati v. City of New York, 303 A.D.2d 406, 407, 755 N.Y.S.2d 853). Furthermore, the petitioner failed to proffer any excuse for the significant delay between the time that he was diagnosed with his injuries and the time that he served a late notice of claim or commenced this proceeding ( see Matter of Joseph v. City of New York, 101 A.D.3d 721, 955 N.Y.S.2d 622;Matter of Grant v. Nassau County Indus. Dev. Agency, 60 A.D.3d 946, 947, 875 N.Y.S.2d 556;Matter of Jantzen v. Half Hollow Hills Cent. School Dist. No. 5, 56 A.D.3d 474, 475, 866 N.Y.S.2d 768).
The petitioner contends that the District acquired actual knowledge of the essential facts constituting the claim against it within 90 days after the claim accrued by reason of a police accident report prepared by the responding officer, as well as from motor vehicle accident reports that were prepared by the petitioner, the driver of the District's vehicle, and a witness at the scene of the accident, and filed with the Suffolk County Sheriff's Office. The fact that the Suffolk County Sheriff's Office had knowledge of this accident, without more, cannot be considered actual knowledge of the District regarding the essential facts constituting the claim against it ( see Matter of Klass v. City of New York, 103 A.D.3d 800, 801, 959 N.Y.S.2d 738;Matter of Mitchell v. Town of Greenburgh, 96 A.D.3d 852, 852–853, 946 N.Y.S.2d 220;State Farm Mut. Auto. Ins. Co. v. New York City Tr. Auth., 35 A.D.3d 718, 718, 828 N.Y.S.2d 416;Matter of Continental Ins. Co. v. City of Rye, 257 A.D.2d 573, 574, 683 N.Y.S.2d 585). In any event, the accident reports were inadequate to provide the District with actual knowledge of the facts constituting the claim against it, since they did not indicate that the petitioner sustained any injuries as a result of the subject accident ( see Matter of Keyes v. City of New York, 89 A.D.3d 1086, 1086, 933 N.Y.S.2d 607;Matter of Jackson v. Newburgh Enlarged City School Dist., 85 A.D.3d 1031, 1032, 925 N.Y.S.2d 856; Matter of Harper v. City of New York, 69 A.D.3d 939, 940, 896 N.Y.S.2d 78). Finally, the petitioner failed to meet his burden of establishing that the significant delay would not substantially prejudice the District in maintaining its defense on the merits ( see Matter of Brandi v. City of New York, 90 A.D.3d 751, 751, 934 N.Y.S.2d 340;Matter of Hill v. New York City Tr. Auth., 68 A.D.3d 866, 867, 890 N.Y.S.2d 627;Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 152, 851 N.Y.S.2d 218).
The petitioner's remaining contentions are not properly before this Court ( see Matter of Zaid v. City of New York, 87 A.D.3d 661, 663, 928 N.Y.S.2d 579).