Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y (Kathleen D. Foley of counsel), for appellant.
Gruenberg Kelly Della, P.C., Ronkonkoma, N.Y. (John Aviles of counsel), for respondent.
PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, SYLVIA HINDS-RADIX, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Martin, J.), dated April 9, 2012, as, in effect, denied that branch of its motion which was to dismiss the complaint insofar as asserted on behalf of Brittany Claud for failure to serve a timely notice of claim and granted that branch of the plaintiffs' cross motion which was for leave to serve a late notice of claim on behalf of Brittany Claud.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court did not improvidently exercise its discretion in permitting the plaintiffs to serve a late notice of claim on behalf of the infant plaintiff. The plaintiffs demonstrated that the defendant acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter (see Education Law § 3813[2-a]; General Municipal Law § 50-e; Matter of Devivo v Town of Carmel, 68 A.D.3d 991; Matter of Avalos v City of N.Y. Bd. of Educ., 67 A.D.3d 675; Matter of Formisano v Eastchester Union Free School Dist., 59 A.D.3d 543, 545). "In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation 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; see Williams v Nassau County Med. Ctr., 6 N.Y.3d 531, 539; Matter of Leeds v Port Wash. Union Free School Dist., 55 A.D.3d 734, 735).
Here, the infant plaintiff alleged that she was specifically instructed by her teacher to go into the girls' bathroom to tell some students in the bathroom to keep quiet, and that, in the course of complying with that request, her finger got caught in her classroom door and was injured. Before the infant plaintiff was taken to the hospital by ambulance, her teacher told her that he would give her a dollar for every stitch she had, and he later called the infant plaintiff's home to inquire about her. During that telephone call, the teacher and the infant plaintiff's mother allegedly discussed a door at the school. Although, as the dissent points out, the meaning of the teacher's comments about the door was not entirely clear, the comments demonstrated some awareness that a problem with a door at the school might have contributed to the accident. The teacher could easily have voiced concern about the infant plaintiff without mentioning the door at all. Additionally, the school nurse completed a medical claim form, detailing the accident, the injury, and the treatment provided. Under these circumstances, the defendant acquired actual knowledge of the essential facts constituting the claim (see Matter of Funkhouser v Middle Country Cent. Sch. Dist., 102 A.D.3d 689; Matter of Vitale v Elwood Union Free School Dist., 19 A.D.3d 610, 611; Bovich v East Meadow Pub. Lib., 16 A.D.3d 11, 19-20).
Furthermore, the defendant will not be substantially prejudiced in maintaining a defense on the merits as a result of the plaintiffs' delay in seeking leave to serve a late notice of claim, in light of the teacher's involvement in the incident and the nurse's documentation of the accident and injuries (see Matter of Funkhouser v Middle Country Cent. Sch. Dist., 102 A.D.3d at 689; Matter of Hursala v Seaford Middle School, 46 A.D.3d 892, 893). "[T]he absence of a reasonable excuse for the delay does not bar the granting of... leave to serve a late notice of claim where, as here, there is actual knowledge and an absence of prejudice" (Matter of St. Paul Guardian Ins. Corp. v Pocatello Fire Dist., 90 A.D.3d 761, 762; see Matter of Whittaker v New York City Bd. of Educ., 71 A.D.3d 776, 778).
SKELOS, J.P., SGROI and HINDS-RADIX, JJ., concur.
CHAMBERS, J., dissents, and votes to reverse the order insofar as appealed from, grant that branch of the defendant's motion which was to dismiss the complaint insofar as asserted on behalf of Brittany Claud for failure to serve a timely notice of claim, and deny that branch of the plaintiffs' cross motion which was for leave to serve a late notice of claim on behalf of Brittany Claud.
I respectfully dissent.
On November 19, 2008, Mr. McKeown, a third-grade teacher at Tooker Avenue School within the West Babylon Union Free School District (hereinafter the School District), asked the infant plaintiff and her friend Krista to tell some students in the girls' bathroom to quiet down. The infant plaintiff opened the classroom door, and Krista followed behind her, holding the door open. As Krista released the door, it closed on the infant plaintiff's little finger, which she had left in the "hinge" of the door, partially severing it. She ran down to the nurse's office, and was then taken to the hospital.
On December 16, 2010, the infant plaintiff, by her mother, and her mother individually, filed a notice of claim upon the School District without leave of court. The plaintiffs then commenced this action, inter alia, to recover damages for personal injuries. Thereafter, on November 7, 2011, in response to the School District's motion to dismiss the complaint based on their failure to timely serve a notice of claim, the plaintiffs cross-moved for leave to serve a late notice of claim, submitting the same notice of claim previously filed.
In determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the public corporation (or its attorney or insurance carrier) acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, (2) the claimant was an infant at the time the claim arose and, if so, whether there was a nexus between the claimant's infancy and the delay in service of a notice of claim, (3) the claimant had a reasonable excuse for the delay, and (4) the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see General Municipal Law § 50-e; Matter of Avalos v City of N.Y. Bd. ...