- April 23, 2018
Ahearne Law Firm, PLLC, Warwick, NY (Allan J. Ahearne, Jr.,
of counsel), and Slavin & Slavin, New York, NY (Barton L.
Slavin of counsel), for appellant (one brief filed).
Lemire, Johnson & Higgins, LLC, Malta, NY (Gregg T.
Johnson and Bradley J. Stevens of counsel), and Greenberg
Wanderman & Fromson, Nanuet, NY (Stephen M. Fromson of
counsel), for respondents (one brief filed).
S. ROMAN, J.P. JEFFREY A. COHEN ROBERT J. MILLER JOSEPH J.
DECISION & ORDER
action to recover damages for personal injuries, and a
related proceeding pursuant to General Municipal Law §
50-e(5) for leave to serve a late notice of claim, "Jane
Doe, '' the plaintiff in Matter No. 1 and the
petitioner in Matter No. 2, appeals from an order of the
Supreme Court, Rockland County (Victor J. Alfieri, Jr., J.),
dated January 29, 2016. The order, insofar as appealed from,
denied the petition in Matter No. 2 and granted the motion of
the defendants in Matter No. 1 to dismiss the complaint for
failure to timely serve a notice of claim.
that the order is affirmed insofar as appealed from, with
Doe, '' the plaintiff in Matter No. 1 and the
petitioner in Matter No. 2 (hereinafter the plaintiff),
alleges that Kimberly Taylor, the principal of the Hilltop
Schoo, l where the plaintiffs child had been placed in an
Intensive Day Treatment (hereinafter IDT) program, physically
assaulted and verbally demeaned the child during an encounter
in the school's hallway on February 28, 2014. On or about
February 19, 2015, the plaintiff served a notice of claim
dated February 13, 2015, on Taylor's employer, the
Rockland County Board of Cooperative Educational Services
(hereinafter Rockland BOCES), and thereafter commenced an
action to recover damages for personal injuries against
Taylor and Rockland BOCES (hereinafter together the
defendants) on or about March 6, 2015. The defendants moved
to dismiss the complaint, inter alia, for failure to serve a
timely notice of claim. The plaintiff opposed the motion and,
on or about May 13, 2015, commenced a proceeding pursuant to
General Municipal Law § 50-e(5) for leave to serve a
late notice of claim or to deem served nunc pro tunc the
notice of claim served on or about February 19, 2015. In the
order appealed from, the Supreme Court, inter alia, denied
the petition and granted the defendants' motion to
dismiss the complaint. The plaintiff appeals.
determining whether to grant leave to serve a late notice of
claim or to deem a late notice of claim timely served nunc
pro tunc, a court must consider whether (1) the municipality
acquired actual knowledge of the essential facts constituting
the claim within 90 days after the accrual of the claim or
within 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
demonstrated a reasonable excuse for the failure to serve a
timely notice of claim, and (4) the municipality was
substantially prejudiced by the delay in its ability to
maintain its defense on the merits (see General
Municipal Law § 50-e; Matter of Bhargava v City
of New York, 130 A.D.3d 819; Matter of Murray v
Village of Malverne, 118 A.D.3d 798). Actual knowledge
of the essential facts constituting the claim means
"knowledge of the facts that underlie the legal theory
or theories on which liability is predicated in the
[proposed] notice of claim; the [municipality] 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).
to the plaintiff's contention, the direct involvement of
Taylor, Rockland BOCES's employee, in the incident
itself, without more, is not sufficient to establish that the
defendants had actual knowledge of the essential facts
constituting the claim (see Matter of D'Agostino v
City of New York, 146 A.D.3d 880; Matter of Thill v
North Shore Cent. Sch. Dist., 128 A.D.3d 976). Here,
there was no incident report by the defendants or record by
any individual or entity provided to the defendants that
described the facts underlying the legal theories on which
liability is predicated.
plaintiff also failed to proffer a reasonable excuse for the
failure to timely serve a notice of claim. The
plaintiff's proffered excuses were conclusory or
contradicted by the record (see Matter of Romeo v Long
Is. Power Auth., 133 A.D.3d 667; Matter of Fouto v
City of Yonkers, 83 A.D.3d 708; Matter of Julie F. v
City of New York, 50 A.D.3d 794). Furthermore, while
infancy is a factor to be considered in determining whether
to grant leave to serve a later notice of claim, the lack of
a causal nexus between the infancy and the delay in service
of the late notice of claim herein is a factor militating
against granting leave (see Williams v Nassau County Med.
Ctr., 6 N.Y.3d 531, 538; Matter of Felice v
Eastport/South Manor Cent. Sch. Dist., 50 A.D.3d at
plaintiff also did not make an initial showing that the
failure to timely serve the notice of claim would not
substantially prejudice the defendants' ability to defend
against the claim (see generally Matter of Newcomb v
Middle County Cent. Sch. Dist., 28 N.Y.3d 455). The
defendants did not have the opportunity to conduct any
physical or mental health examinations of the child or to
photograph or record his alleged physical injuries at or near
the time of the incident.
plaintiff's remaining contention is without merit.
J.P., COHEN, MILLER and ...