Opinion
May 13, 1996
Appeal from the Supreme Court, Rockland County (Scarpino, J., Rudolph, J.).
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision ( see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
Ordered that the order and judgment is reversed, as a matter of discretion, and the proceeding is dismissed; and it is further,
Ordered that the appellant is awarded one bill of costs.
The Supreme Court improvidently exercised its discretion in granting the petitioners leave to serve a late notice of claim against the Clarkstown Central School District (hereinafter the School District). While General Municipal Law § 50-e and Education Law § 3813 (2-a) authorized the court, upon a proper showing, to extend the petitioners' time to serve the notice of claim, the record does not support the court's determination in this case. Contrary to the petitioners' contention, the School District did not have actual knowledge of the essential facts constituting their claim within the appropriate time period ( see, Education Law § 3813 [2-a]). Indeed, although a "Student Incident Report" was completed by the school nurse on the date of the incident, it merely stated that the then 15 year-old Olga Rusiecki had fallen and banged her knee on the floor during volleyball practice. Thus, this report did not provide the School District with actual knowledge of the essential facts constituting the petitioners' present claim that the School District caused Olga's injury by its negligence in equipping, training, and supervising her ( see, Matter of Hubbard v. City School Dist., 204 A.D.2d 721). Moreover, Olga's injury, as reflected in the Student Incident Report, did not appear so serious at the time of the occurrence that the School District would have been alerted to the advisability of making a full investigation of the circumstances attendant to Olga's injury ( see, Matter of Katz v. Rockville Centre Union Free School Dist., 131 A.D.2d 574). In addition, Olga's infancy is unrelated to the almost three-year delay in serving the notice of claim ( see, Matter of Zee v. Hicksville Union Free School Dist., 210 A.D.2d 237; Matter of Goldstein v. Clarkstown Cent. School Dist., 208 A.D.2d 537), and the petitioners have failed to establish a valid excuse for their delay ( see, Matter of Schirripa v. Birch Lane Elementary School, 154 A.D.2d 536; Matter of Andersen v Nassau County Med. Ctr., 135 A.D.2d 530, 531). The absence of demonstrable prejudice attributable to the petitioners' delay is not dispositive, but is only one factor to be considered by the court ( see, Matter of Katz v. Rockville Centre Union Free School Dist., supra, at 576). Mangano, P.J., Miller, Ritter and Pizzuto, JJ., concur.