Opinion
Index No. EF003841-2023
08-17-2023
E.B., and infant, by Janett Rodriguez, Individually, and as Parent and Natural Guardian, Petitioner(s), v. Newburgh Enlarged City School District, Respondent.
O'CONNOR & PARTNERS, PLLC Attorneys for Petitioners CATANIA, MAHON, & RIDER, PLLC Attorneys for Respondent
Unpublished Opinion
O'CONNOR & PARTNERS, PLLC Attorneys for Petitioners
CATANIA, MAHON, & RIDER, PLLC Attorneys for Respondent
Craig Stephen Brown, J.
Petitioners move for disclosure in a special proceeding. Specifically, the petitioners request all videos in respondent's possession relating to the incident which occurred on June 8, 2022 at approximately 11:30 A.M. at the South Middle School in Newburgh, New York.
Petitioners also seek leave to serve a late notice of claim upon the respondents.
The following papers were read:
Notice of Motion - Affirmation of Thomas C. Yatto, Esq. Annexed Exhibits 1 - 3
Notice of Petition - Verified Petition - Affirmation of Thomas C. Yatto, Esq. - Annexed Exhibits 4 - 7
David E. Decker, Esq.'s Affirmation in Opposition 8
Additional Affirmation of David E. Decker, Esq. 9
Verified Answer, Affirmative Defenses and Objections in Point of Law 10
Upon the foregoing papers it is hereby ORDERED that the petitioners' motion for disclosure is denied based upon the respondent's representation that: 1) it is "not in possession of any other documents or reports pertaining to this incident"; and 2) "the video of the incident no longer exists." With respect to the petitioners' motion for leave to serve a late notice of claim, such motion is granted.
The instant special proceeding is brought by petitioner E.B., a student in the Newburgh Enlarged City School District, and his mother Janett Rodriguez. Petitioners contend that on June 8, 2022 at approximately 11:32 A.M. E.B., while walking to class in the 7th grade hallway of South Middle School, was picked up by student A.A. and thrown to the floor causing injury to E.B., including two broken front teeth. Petitioners seek leave to serve a late notice of claim. "In determining whether to grant leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim, whether 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, and whether the delay would substantially prejudice the public corporation in its defense on the merits" (Brown v. City of New York, 2023 NY Slip Op. 03693 [2nd Dept., 2023] citing Matter of Manbodh v. New York City Tr. Auth., 204 A.D.3d 914, 915; Matter of McGrue v. City of New York, 195 A.D.3d 932).
The Court concludes "that the balance of the statutory factors in this case warrants the granting of the petition. The [Newburgh Enlarged City School District Student Accident Report and the Commercial Travelers Mutual Insurance Company Accident Claim Form] prepared and filed shortly after the petitioner's [incident] provided the [respondent] with timely actual knowledge of the essential facts constituting the claim. Further, [their] specificity regarding the location and circumstances of the incident permitted the [respondent] to readily infer that a potentially actionable wrong had been committed" (Brown v. City of New York, 2023 NY Slip Op. 03693 [2nd Dept., 2023] citing Matter of Catania v. City of New York, 188 A.D.3d 1041, 1043; Matter of Nieto v. City of New York, 170 A.D.3d 1022, 1023). In addition, "as the [respondent] acquired timely knowledge of the essential facts constituting the claim, the petitioner[s] met [their] initial burden of showing that the [respondent] would not be prejudiced by the late notice of claim (see Matter of McGrue v. City of New York, 195 A.D.3d at 932; Matter of McVea v. County of Orange, 186 A.D.3d 1221, 1223). In response to the petitioners' initial showing, the [respondent] failed to come forward with particularized evidence demonstrating that the late notice of claim substantially prejudiced its ability to defend the claim on the merits" (Brown v. City of New York, 2023 NY Slip Op. 03693 [2nd Dept., 2023] citing Matter of McGrue v. City of New York, 195 A.D.3d at 933; Matter of Tejada v. City of New York, 161 A.D.3d 876, 878). "Since the [respondent] had actual knowledge of the essential facts underlying the claim and no substantial prejudice to the [respondent] was demonstrated, the petitioner[s]' failure to provide a reasonable excuse for the delay in serving the notice of claim [does] not serve as a bar to granting leave to serve a late notice of claim" (Brown v. City of New York, 2023 NY Slip Op. 03693 [2nd Dept., 2023] citing Matter of Manbodh v. New York City Tr. Auth., 204 A.D.3d at 915; Matter of McVea v. County of Orange, 186 A.D.3d at 1223). Accordingly, the granting of leave to serve a late notice of claim is appropriate.
Petitioners are granted leave to file the notice of claim in the form annexed as Exhibit A to the verified petition within twenty (20) days after entry of the instant order.
The foregoing constitutes the Decision and Order of this Court.
So Ordered.