Opinion
2015-04067, Index No. 71011/14.
04-13-2016
In the Matter of SALVATORE Saponara, etc., respondent, v. LAKELAND CENTRAL SCHOOL DISTRICT, et al., appellants.
Henderson & Brennan (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Kathleen D. Foley ], of counsel), for appellants. Law Office of Michael H. Joseph, PLLC, White Plains, N.Y., for respondent.
Henderson & Brennan (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Kathleen D. Foley ], of counsel), for appellants.
Law Office of Michael H. Joseph, PLLC, White Plains, N.Y., for respondent.
RUTH C. BALKIN, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.
In a proceeding pursuant to General Municipal Law § 50–e (5) for leave to serve a late notice of claim, Lakeland Central School District and George Washington Elementary School appeal from an order of the Supreme Court, Westchester County (Jamieson, J.), dated April 23, 2015, 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.
In June 2014, the infant Jeremy Saponara (hereinafter Jeremy), then a student in the Lakeland Central School District (hereinafter Lakeland) at George Washington Elementary School (hereinafter the School), allegedly was injured during recess when he jumped off the swings in the school's playground and hurt his wrists. More than 5 ½ months later, Jeremy's father commenced this proceeding for leave to serve a late notice of claim on Lakeland and the School (hereinafter together the appellants).
In determining whether to grant leave to serve a late notice of claim, a court must consider 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 child 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 its defense on the merits (see Education Law § 3813[2–a] ; General Municipal Law § 50–e[5] ; Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 535, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ; Matter of Hampson v. Connetquot Cent. Sch. Dist., 114 A.D.3d 790, 980 N.Y.S.2d 132 ; Matter of Destine v. City of New York, 111 A.D.3d 629, 974 N.Y.S.2d 123 ; Matter of Avalos v. City of N.Y. Bd. of Educ., 67 A.D.3d 675, 675–676, 886 N.Y.S.2d 910 ). “In order to have actual knowledge of the essential facts constituting the claim, [the school district] must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; [the school district] need not have specific notice of the theory or theories themselves” (Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 148, 851 N.Y.S.2d 218 ).
Here, the petitioner did not proffer any excuse for the failure to serve a timely notice of claim (see Matter of Anderson v. New York City Dept. of Educ., 102 A.D.3d 958, 959, 958 N.Y.S.2d 746 ; Tegay v. Rocky Point Sch. Dist., 101 A.D.3d 985, 986, 956 N.Y.S.2d 146 ; Matter of Jackson v. Newburgh Enlarged City School Dist., 85 A.D.3d 1031, 1032, 925 N.Y.S.2d 856 ). Furthermore, Jeremy's infancy, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse (see Iglesias v. Brentwood Union Free Sch. Dist., 118 A.D.3d 785, 786, 987 N.Y.S.2d 195 ; Matter of Manuel v. Riverhead Cent. Sch. Dist., 116 A.D.3d 1048, 1049, 984 N.Y.S.2d 409 ; Robertson v. Somers Cent. School Dist., 90 A.D.3d 1012, 1013, 935 N.Y.S.2d 145 ).
Moreover, the petitioner failed to establish that the appellants acquired actual knowledge of the essential facts constituting his claim within 90 days after the incident or a reasonable time thereafter. While the School's nurse prepared a student incident report on the day of the incident, this form, which merely indicated that Jeremy was injured when he jumped off the swings onto his hands, did not provide the appellants with actual knowledge of the essential facts underlying the claim that the appellants were negligent in their maintenance of the playground by failing to maintain an adequate depth of woodchips on the ground beneath the swings (see Matter of Lamprecht v. Eastport–South Manor Cent. Sch. Dist., 129 A.D.3d 1084, 1086, 13 N.Y.S.3d 154 ; Matter of Sparrow v. Hewlett–Woodmere Union Free Sch. Dist. [# 14], 110 A.D.3d 905, 907, 973 N.Y.S.2d 308 ; Matter of Doyle v. Elwood Union Free School Dist., 39 A.D.3d 544, 545, 833 N.Y.S.2d 204 ; Matter of Scott v. Huntington Union Free School Dist., 29 A.D.3d 1010, 1011, 816 N.Y.S.2d 165 ). Finally, the petitioner failed to rebut the appellants' assertion that the overall delay of more than 5 ½ months between the time of the incident and the commencement of this proceeding would substantially prejudice their ability to conduct an investigation at this late date, given the transitory nature of the alleged inadequate condition of the playground surface (see Matter of Valila v. Town of Hempstead, 107 A.D.3d 813, 815, 968 N.Y.S.2d 100 ; Matter of Bell v. City of New York, 100 A.D.3d 990, 954 N.Y.S.2d 229 ; Matter of Valentine v. City of New York, 72 A.D.3d 981, 982, 898 N.Y.S.2d 515 ; Marengo v. City of New York, 266 A.D.2d 438, 698 N.Y.S.2d 702 ).
The petitioner's remaining contentions are improperly raised for the first time on appeal and are not properly before this Court (see Matter of Fernandez v. City of New York, 131 A.D.3d 532, 533–534, 15 N.Y.S.3d 166 ; Matter of Klass v. City of New York, 103 A.D.3d 800, 802, 959 N.Y.S.2d 738 ; Matter of Zaid v. City of New York, 87 A.D.3d 661, 663, 928 N.Y.S.2d 579 ).