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In re Ramos

Supreme Court of New York, Second Department

March 15, 2017

In the Matter of Ines Ramos, etc., appellant,
v.
Board of Education of the City of New York, et al., respondents. Index No. 7956/15

          Goldstein & Goldstein, P.C., Brooklyn, NY (Mark I. Goldstein and Cindy A. Moonsammy of counsel), for appellant.

          Zachary W. Carter, Corporation Counsel, New York, NY (Aaron Bloom and Randall L. Morrison, Jr., of counsel), for respondents.

          MARK C. DILLON, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS-RADIX, JOSEPH J. MALTESE, JJ.

          DECISION & ORDER

         In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Kings County (Genovesi, J.), dated October 23, 2015, which denied the petition.

         ORDERED that the order is affirmed, with costs.

         On May 9, 2014, Olga Lopez, a then-seventh-grade student at I.S. 61 in Corona, Queens, allegedly was injured while performing a floor exercise during her physical education class. Lopez allegedly complained to the physical education teacher about this particular exercise on prior occasions but was nonetheless directed to perform it. The following day, Lopez sought medical treatment, allegedly was diagnosed with a fractured spine, and was directed to undergo physical therapy. On June 1, 2015, she underwent back surgery and was discharged from the hospital on June 4, 2015. On or about July 1, 2015, Lopez's mother, the petitioner, Ines Ramos, commenced this proceeding, on behalf of Lopez and individually, for leave to serve a late notice of claim upon the Board of Education of the City of New York and the City of New York (hereinafter together the City). The Supreme Court denied the petition.

         "Timely service of a notice of claim is a condition precedent to a lawsuit sounding in tort and commenced against a municipality" (Matter of Zaid v City of New York, 87 A.D.3d 661, 662). This requirement also applies to tort actions brought against, inter alia, school districts and school boards (see Education Law § 3813[2]; Matter of Quinn v Wallkill Cent. Sch. Dist. Bd. of Educ., 131 A.D.3d 1063). "The determination of an application for leave to serve and file a late notice of claim is left to the sound discretion of the trial court" (Matter of Unique Wooden v City of New York, 136 A.D.3d 932, 932). "In determining whether to grant leave to serve a late notice of claim, a court must consider whether: (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant was an infant or mentally or physically incapacitated, (3) the claimant had a reasonable excuse for the failure to serve a timely notice of claim, and (4) the delay would substantially prejudice the public corporation in its defense" (Matter of Tonissen v Huntington U.F.S.D., 80 A.D.3d 704, 704-705; see General Municipal Law § 50-e[5]; Education Law § 3813[2-a]; Horn v Bellmore Union Free Sch. Dist., 139 A.D.3d 1006, 1007). "The presence or absence of any one factor is not necessarily determinative" (Horn v Bellmore Union Free Sch. Dist., 139 A.D.3d at 1007).

         "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). "[K]nowledge 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" (id. at 155; see Horn v Bellmore Union Free Sch. Dist., 139 A.D.3d at 1008). In addition, the mere awareness by school employees that a student has been injured is insufficient to establish that the public corporation had actual knowledge of the essential facts constituting the claim (see Matter of Lewis v East Ramapo Cent. School Dist., 110 A.D.3d 720, 721-722; Matter of Gunsam v Eastern Suffolk Bd. of Coop. Educ. Servs., 109 A.D.3d 542, 543).

         While the infancy of the claimant is one of the listed factors, infancy alone does not compel the granting of a petition for leave to serve a late notice of claim (see Horn v Bellmore Union Free Sch. Dist., 139 A.D.3d at 1008; Matter of Lamprecht v Eastport-South Manor Cent. Sch. Dist., 129 A.D.3d 1084, 1085). In order for the infancy of a claimant to constitute a reasonable excuse for the failure to serve a timely notice of claim, the petitioner must show a nexus between the infancy and the delay (see Matter of Saponara v Lakeland Cent. Sch. Dist., 138 A.D.3d 870, 871; Matter of Manuel v Riverhead Cent. Sch. Dist., 116 A.D.3d 1048, 1049; Matter of Torres v Tuckahoe Union Free School Dist., 94 A.D.3d 770, 771). Moreover, where, as here, a parent alleges that he or she was consumed with the infant's medical care and unable to serve a timely notice of claim, it does not constitute a reasonable excuse unless it is supported by evidence demonstrating that the delay was directly attributable to the infant's medical condition (see Matter of Tonissen v Huntington U.F.S.D., 80 A.D.3d at 705; cf. Matter of Haeg v County of Suffolk, 30 A.D.3d 519, 520).

         Here, the petitioner failed to establish that the City had acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident or a reasonable time thereafter (see General Municipal Law § 50-e[5]). While the petitioner alleges that the physical education teacher invented the particular exercise and was present when Lopez was injured, she failed to submit any evidence that the City acquired actual knowledge of the essential facts underlying their negligence claims (see Horn v Bellmore Union Free Sch. Dist., 139 A.D.3d at 1008). Thus, the City had no reason to conduct a prompt investigation into the purported negligence (see Matter of Manuel v Riverhead Cent. Sch. Dist., 116 A.D.3d 1048, 1050; Matter of Werner v Nyack Union Free School Dist., 76 A.D.3d 1026, 1027).

         The petitioner also failed to proffer evidence establishing a reasonable excuse for her failure to serve a timely notice of claim (see Matter of Manuel v Riverhead Cent. Sch. Dist., 116 A.D.3d at 1049). Lopez's infancy, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse (see Matter of Saponara v Lakeland Cent. Sch. Dist., 138 A.D.3d at 871; Iglesias v Brentwood Union Free Sch. Dist., 118 A.D.3d 785, 786). Moreover, the assertion by the petitioner that she was consumed with Lopez's medical care was also insufficient to constitute a reasonable excuse, as it was not supported by any evidence demonstrating that the delay in serving a notice of claim was directly attributable to Lopez's medical condition (see Matter of Tonissen v Huntington U.F.S.D., 80 A.D.3d 705).

         Finally, the petitioner failed to present "some evidence or plausible argument" supporting a finding that the City was not substantially prejudiced by the 11-month delay in serving a notice of claim (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 N.Y.3d 455).

         Accordingly, the Supreme Court providently exercised its discretion in denying the petition for leave ...


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