Opinion
2021–01059 Index No. 517457/20
08-24-2022
In the Matter of C. N., etc., appellant, v. CITY OF NEW YORK, et al., respondents.
Law Firm of Davidoff & Associates, Forest Hills, NY (Mark Getzoni of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Deborah A. Brenner and Eva L. Jerome of counsel), for respondents.
Law Firm of Davidoff & Associates, Forest Hills, NY (Mark Getzoni of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Deborah A. Brenner and Eva L. Jerome of counsel), for respondents.
ANGELA G. IANNACCI, J.P., JOSEPH A. ZAYAS, LARA J. GENOVESI, WILLIAM G. FORD, JJ.
DECISION & ORDER In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the petitioner appeals from an order of the Supreme Court, Kings County (Rosemarie Montalbano, J.), dated January 21, 2021. The order denied the petition and dismissed the proceeding.
ORDERED that the order is affirmed, with costs.
On May 20, 2019, while a student attending a high school in Brooklyn, the petitioner, an infant, participated in a flag football game in the gymnasium during school hours. While participating in that game, another student elbowed the petitioner's face, causing facial lacerations and nasal injuries. The petitioner reported to the school nurse's office, where a "Head Injury Notification Form" was prepared to be sent to his parents. The petitioner was dismissed from school into the care of his mother, who brought him to the emergency room for further treatment.
Approximately eight months later, in January 2020, the petitioner's mother retained counsel for the purpose of pursuing a legal action against the respondents. At the time she met with her attorneys, the mother was unaware of the 90–day notice of claim filing requirement. On February 10, 2020, approximately 162 days after the incident, the petitioner served the respondents with a late notice of claim dated January 27, 2020. Approximately seven months later, on September 17, 2020, the petitioner, by his mother, commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem the late notice of claim timely served nunc pro tunc. In an order dated January 21, 2021, the Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.
Timely service of a notice of claim is a condition precedent to an action sounding in tort and commenced against a municipality (see General Municipal Law § 50–e[1][a] ; Matter of C.B. v. Carmel Cent. Sch. Dist., 164 A.D.3d 670, 670, 83 N.Y.S.3d 276 ; Matter of Ramos v. Board of Educ. of the City of N.Y., 148 A.D.3d 909, 910, 49 N.Y.S.3d 539 ). This requirement also applies to tort actions brought against school districts and school boards (see Education Law § 3813[2] ; Matter of Ramos v. Board of Educ. of the City of N.Y., 148 A.D.3d at 910, 49 N.Y.S.3d 539 ). Pursuant to General Municipal Law § 50–e(5), upon application, the Supreme Court, in its discretion, may extend the time to serve a notice of claim upon a public corporation as required by General Municipal Law § 50–e(1).
In determining whether to grant leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether (1) the school district acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the injured party was an infant at the time the claim arose and, if so, whether there was a nexus between the infancy and the failure to serve a timely notice of claim, (3) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (4) the school district was substantially prejudiced by the delay in its ability to maintain a defense on the merits (see Education Law § 3813[2–a] ; General Municipal Law § 50–e[5] ; Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 463–464, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; Matter of Bermudez v. City of New York, 167 A.D.3d 733, 734, 89 N.Y.S.3d 289 ; Matter of D.M. v. Center Moriches Union Free Sch. Dist., 151 A.D.3d 970, 971, 54 N.Y.S.3d 161 ). Neither the presence nor absence of any one factor is determinative, although it is generally recognized that the question of whether the municipality timely acquired actual knowledge is of great importance (see Matter of Bermudez v. City of New York, 167 A.D.3d at 734, 89 N.Y.S.3d 289 ; Matter of A.C. v. West Babylon Union Free Sch. Dist., 147 A.D.3d 1047, 1048, 48 N.Y.S.3d 422 ; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 148, 851 N.Y.S.2d 218 ). "Actual knowledge of the essential facts underlying the claim means ‘knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the [proposed] notice of claim; the public corporation need not have specific notice of the theory or theories themselves’ " ( Matter of A.C. v. West Babylon Union Free Sch. Dist., 147 A.D.3d at 1048, 48 N.Y.S.3d 422, quoting Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 148, 851 N.Y.S.2d 218 ). Knowledge of "the accident itself and the seriousness of the injury does not satisfy this enumerated factor where those facts do not also provide the public corporation with knowledge of the essential facts constituting the claim" ( Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 155, 851 N.Y.S.2d 218 ; see Matter of Quinones v. City of New York, 160 A.D.3d 874, 876, 74 N.Y.S.3d 602 ; Matter of Ramos v. Board of Educ. of the City of N.Y., 148 A.D.3d at 911, 49 N.Y.S.3d 539 ).
Here, the petitioner failed to establish that the respondents acquired actual knowledge of the essential facts constituting his claim within 90 days or a reasonable time after the incident. Although the respondents acknowledged that the petitioner reported to the school nurse's office immediately following the incident and that the nurse prepared a "Head Injury Notification Form," that form failed to provide sufficient detail concerning the incident. The form failed to specify where the incident occurred, did not indicate that another student struck the petitioner, made no mention of the specific sporting activity or the gymnasium, failed to indicate that it had been sent to or received by any New York City Department of Education employee or anyone beyond the petitioner, and made no references to witnesses to the occurrence. "[F]or a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation" ( Matter of Nunez v. Village of Rockville Ctr., 176 A.D.3d 1211, 1214–1215, 111 N.Y.S.3d 71 [internal quotation marks omitted]). Contrary to the petitioner's contention, under these circumstances, it cannot be said then that the respondents timely obtained actual knowledge of the facts constituting the petitioner's claim (see I.N. v. City of Yonkers, 203 A.D.3d 721, 723–724, 160 N.Y.S.3d 630 ; Matter of Catania v. City of New York, 188 A.D.3d 1041, 1043, 134 N.Y.S.3d 421 ; Matter of Lugo v. GNP Brokerage, 185 A.D.3d 824, 825, 127 N.Y.S.3d 527 ; see also Matter of Quinones v. City of New York, 160 A.D.3d at 876, 74 N.Y.S.3d 602 ).
Moreover, the petitioner did not present a reasonable excuse for his failure to timely serve the notice of claim and for the approximate nine-month delay in serving the notice of claim. The mother's ignorance of the law requiring timely service of the notice of claim within 90 days does not suffice (see Matter of Clarke v. Veolia Transp. Servs., Inc., 204 A.D.3d 666, 163 N.Y.S.3d 836 ; Matter of Bell v. City of New York, 100 A.D.3d 990, 990, 954 N.Y.S.2d 229 ; Matter of Taylor v. County of Suffolk, 90 A.D.3d 769, 770, 934 N.Y.S.2d 348 ). Further, the petitioner did not supply the requisite nexus between his infancy and the delay in filing the notice of claim (see I.N. v. City of Yonkers, 203 A.D.3d 721, 160 N.Y.S.3d 630 ; see also J.G. v. Academy Charter Elementary Sch., 204 A.D.3d 643, 645, 166 N.Y.S.3d 246 ; Matter of Quinones v. City of New York, 160 A.D.3d 874, 876, 74 N.Y.S.3d 602 ; Matter of D.M. v. Center Moriches Union Free Sch. Dist., 151 A.D.3d at 972, 54 N.Y.S.3d 161 ).
Finally, the petitioner presented no "evidence or plausible argument" that his delay in serving a notice of claim did not substantially prejudice the respondents in defending on the merits ( Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; see Matter of Government Empls. Ins. Co. v. Suffolk County Police Dept., 152 A.D.3d 517, 519, 58 N.Y.S.3d 514 ).
Accordingly, the Supreme Court providently exercised its discretion in denying the petition and dismissing the proceeding.
The parties' remaining contentions either are without merit or have been rendered academic in light of our determination.
IANNACCI, J.P., ZAYAS, GENOVESI and FORD, JJ., concur.