Opinion
2007-2929.
Decided December 21, 2007.
Joseph F. Cawley, Esq., Office Post Office Address, Binghamton, NY, Attorney for Claimant.
Meggesto, Crossett Valerino, LLP, By: James A. Meggesto, Esq., of Counsel, Office Post Office Address, Syracuse, NY, Attorneys for Defendants.
Claimant Mary Cifaratta, as parent and natural guardian of John M. Cifaratta, an infant, seeks leave to file and serve a late notice of claim pursuant to General Municipal Law § 50-e (5) and Education Law § 3813 (2-a).
BACKGROUND
On the date in issue, the infant, age 13 at the time, was an eighth grade student at West Middle School located in Binghamton, New York. On June 7, 2007, at approximately 12:45 p.m., the infant was entering the school building after recess when he was pushed into a door by an unknown person. The infant was seen in the school health office and then transported to a local emergency room where he was diagnosed with a broken nose requiring subsequent surgery.
It is undisputed that an accident report form was completed that same day at the school, a copy of which is attached to claimant's moving papers (Cawley Affidavit, Exhibit A). It is also undisputed that the school reported this accident to its insurance carrier on the following day by submission of an "Accident Claim Form" (Cawley Affidavit, Exhibit B).
By way of this motion, claimant seeks permission to file and serve a late notice of claim pursuant to General Municipal Law (GML) § 50-e (5) and Education Law § 3813 (2-a). At the request of the parties, this motion was heard on submission at the court's December 14, 2007 motion term.
DISCUSSION
It is well-settled that Education Law § 3813 (1) and GML § 50-e (l) (a) require, as a prerequisite to civil suits against school districts and municipalities, that a notice of the precipitating event be served within three months after the accrual of the claim. In the event that a claimant fails to comply with said requirement, a court has discretion to extend the time to serve a notice of claim up until the expiration of the statute of limitations (GML § 50-e; Education Law § 3813 [2-a]; Pryor v Serrano, 305 AD2d 717, 719-720). The exercise of that discretion, however, shall be guided by the following statutory factors: (1) whether defendant acquired actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time after its accrual; (2) any reasonable excuse offered for delay in filing; and (3) prejudice to defendant due to the late notice (Education Law § 3813 [2-a]; GML § 50-e).
The first statutory factor is whether defendant acquired actual knowledge of the essential facts constituting this claim within 90 days or a reasonable time after its accrual. Claimant's position is simply that this incident was reported to the school on the same date as the injury and its insurance carrier the date thereafter. Defendants respond that the mere report of the fact of an injury is not the equivalent of the awareness of the essential facts and nature of a claim (here, negligent supervision). More specifically, defendants assert that they were never advised by way of either the incident report or insurance report that claimant was asserting that this shoving incident was the result of negligent supervision by defendants' employees and, as such, had no reason to conduct an investigation.
It is undisputed that defendants were aware that the infant was injured as a result of a shoving incident as evidenced by the school incident report completed on the same date. However, the court agrees with defendants' position that awareness of the fact of an injury is not the same as actual knowledge of the essential facts of a claim ( Matter of Rusiecki v Clarkstown Cent. School Dist., 227 AD2d 493, 494). Claimant's argument, if taken to its logical conclusion, would require courts to deem every accident report as implicit notice that a claim is to follow even though the nature of the claim is not stated therein. This court can not make that nexus even though in this litigious world, the reality of that leap may not seem unreasonable.
Rather, the court finds that there is nothing in this record to suggest that defendants or their insurance carrier had actual notice of the essential facts constituting the negligent supervision claim within the requisite time period ( Messere by Messere v Fink, 240 AD2d 811; De Jesus v County of Albany, 267 AD2d 649). Stated another way, although the record establishes the school had actual knowledge that this infant was injured in the June 7, 2007 pushing incident, there has been no competent showing that defendants were made aware of claimant's assertion that the infant's injuries resulted from defendants' alleged inadequate supervision ( Hewitt v County of Rensselaer , 6 AD3d 842, 844; Pryor 305 AD2d at 719). Under the circumstances, the court finds nothing to support claimant's contention that defendants had been apprised of the essential facts constituting this claim ( Matter of Dunlea v Mahopac Cent. School Dist., 232 AD2d 558, 559, lv denied 89 NY2d 812).
With respect to the issue of whether claimant had any reasonable excuse offered for the delay in filing, the only explanation offered is a passing reference to the child's infancy. As to the length of the delay the court notes that this incident occurred on June 7, 2007 meaning the three month statutory period would have expired on September 7, 2007. This application was filed on November 28, 2007 — almost a full six months after the injury. In other words, the delay of nearly three months was nearly as long as the original statutory period.
With respect to the issue of prejudice, claimant argues that since defendants were aware of this injury on the same date that there was no resulting prejudice. To the contrary, defendants argue they have suffered prejudice as a result of the loss of the opportunity to promptly and thoroughly investigate this incident, particularly in light of the fact that summer recess occurred immediately after this incident. The court does not find the impending summer recess compelling one way or the other. Even assuming, however, the lack of prejudice, when coupled with this court's finding that claimant has failed to show that defendants acquired knowledge of the claim within a reasonable time, it is an improvident exercise of discretion to grant the application even in the absence of substantial prejudice ( Matter of Cook v Schuylerville Cent. School Dist ., 28 AD3d 921, 922-923; Heffelfinger v Albany Intern. Airport, 43 AD3d 537, 845).
CONCLUSION
For the reasons stated, claimant's motion seeking leave to file and serve a late notice of claim will be DENIED.
The foregoing constitutes an order of the court upon which judgment may be entered according to its terms.
It is so ordered.