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In re R.N.

Supreme Court of New York, Second Department

August 1, 2018

In the Matter of R.N., et al., petitioners-respondents, Village of New Square, appellant, et al., respondent. Index No. 30905/17

          O'Connor McGuinness Conte Doyle Oleson Watson & Loftus, LLP, White Plains, NY (Montgomery L. Effinger of counsel), for appellant.

          SHERI S. ROMAN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, 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 Village of New Square appeals from an order of the Supreme Court, Rockland County (Thomas E. Walsh II, J.), dated, as corrected by an order of the same court dated April 17, 2018. The order, as corrected, insofar as appealed from, granted that branch of the petition which was for leave to serve a late notice of claim upon the Village of New Square.

         ORDERED that the order dated, as corrected, is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, and that branch of the petition which was for leave to serve a late notice of claim upon the Village of New Square is denied.

         On November 2, 2015, the infant petitioner, R.N., who was then eight years old, allegedly was injured when she tripped and fell on a discarded metal bed frame that had been left on the premises of an apartment complex located in Spring Valley. The petitioners alleged that the Village of New Square Public Housing Authority (hereinafter the Housing Authority) owned and/or managed the apartment complex.

         On February 27, 2017, R.N., by her mother, and the mother individually (hereinafter together the petitioners), filed a petition pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim upon the Village and the Housing Authority. By order dated, as corrected by an order of the same court dated April 17, 2018, the Supreme Court granted the petition. The Village appeals from so much of the order as granted that branch of the petition which was for leave to serve a late notice of claim upon it.

         In order to maintain a tort action against a public corporation, a claimant generally must serve a notice of claim within 90 days after the claim arises (see General Municipal Law § 50-e[1]). However, courts are authorized to extend the time in which to serve a notice of claim, provided that the extension does not exceed the time limit for the commencement of an action by the claimant against the public corporation (see General Municipal Law § 50-e[5]; Bazile v City of New York, 94 A.D.3d 929, 929).

         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 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 failure to serve a timely notice of claim, and (4) the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see Bakioglu v Tornabene, 117 A.D.3d 658, 658-659; Bazile v City of New York, 94 A.D.3d at 929-930; Matter of Joy v County of Suffolk, 89 A.D.3d 1025, 1026; Matter of March v Town of Wappinger, 29 A.D.3d 998, 999). The presence or absence of any one factor is not determinative, but whether the public corporation had actual knowledge of the essential facts is of great importance (see Matter of Joy v County of Suffolk, 89 A.D.3d at 1026; Matter of Gonzalez v City of New York, 60 A.D.3d 1058, 1059). General knowledge that a wrong has been committed is insufficient to satisfy the actual knowledge requirement (see Horn v Bellmore Union Free Sch. Dist., 139 A.D.3d 1006, 1007).

         Here, the Supreme Court should have denied that branch of the petition which was for leave to serve a late notice of claim upon the Village on behalf of the mother in her individual capacity, as the statute of limitations for her derivative cause of action had expired at the time the proceeding was commenced (see General Municipal Law § 50-i[1][c]; Bazile v City of New York, 94 A.D.3d at 930; Kim L. v Port Jervis City School Dist., 77 A.D.3d 627). The infancy toll (see CPLR 208) is personal to the infant and does not extend to a parent's derivative cause of action (see Bazile v City of New York, 94 A.D.3d at 930; Kim L. v Port Jervis City School Dist., 77 A.D.3d 627; Blackburn v Three Vil. Cent. School Dist., 270 A.D.2d 298, 298).

         Moreover, the Supreme Court improvidently exercised its discretion in granting that branch of the petition which was for leave to serve a late notice of claim upon the Village on behalf of the infant petitioner (see Horn v Bellmore Union Free Sch. Dist., 139 A.D.3d 1006; Matter of Castro v Clarkstown Cent. School Dist., 65 A.D.3d 1141; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 A.D.3d 138). The mother's assertions that she left a message on the answering machine of the Housing Authority to provide notice of the accident and that she observed employees of the Housing Authority in the vicinity of the discarded bed frame were insufficient to establish that the Village acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter (see Horn v Bellmore Union Free Sch. Dist., 139 A.D.3d 1006; Bazile v City of New York, 94 A.D.3d 929; see generally Matter of Ramirez v City of New York, 148 A.D.3d 908).

         The petitioners did not establish that the delay in serving the notice of claim after the expiration of the 90-day statutory period would not substantially prejudice the Village (see Matter of Newcomb v Middle County Cent. Sch. Dist., 28 N.Y.3d 455; Horn v Bellmore Union Free Sch. Dist., 139 A.D.3d 1006; Matter of Hampson v Connetquot Cent Sch. Dist., 114 A.D.3d 790, 791; Matter of Castro v Clarkstown Cent. School Dist., 65 A.D.3d 1141). Moreover, the petitioners failed to demonstrate a reasonable excuse for the delay. The mother's lack of knowledge of the law was not a reasonable excuse (see Matter of Hampson v Connetquot Cent. Sch. Dist., 114 A.D.3d at 791; Matter of Taylor v County of Suffolk, 90 A.D.3d 769, 770), and the petitioners did not submit any evidence to support the allegation that the mother did not readily appreciate the severity of R.N.'s injuries (see Matter of Hampson v Connetquot Cent. Sch. Dist., 114 A.D.3d at 791; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 A.D.3d at 151).

         Finally, the petitioners did not establish a causal nexus between R.N.'s infancy and the delay in the serving of the notice of claim (see Horn v Bellmore Union Free Sch. Dist., 139 A.D.3d at 1006). Although the mother asserted that she was not aware of the extent of R.N.'s injuries, there is no indication that this lack of awareness was due to R.N.'s infancy. The infancy of a petitioner, standing alone, does not compel the granting of an application for leave to serve a late notice of claim (see Matter of Vasquez v City of Newburgh, 35 A.D.3d 621, 623).

         Accordingly, the Supreme Court should have denied the petition insofar as ...


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