Opinion
62215/2018
06-17-2019
In the Matter of the Application of J.B., an infant by his father and natural guardian, Raymond Belanfante, Petitioner, for an Order granting leave to petitioner to serve a late Notice of Claim v. MT. VERNON CITY SCHOOL DISTRICT, Respondent.
Greenberg & Merola, Attorney for plaintiff, 521 5th Ave. Floor 1700, New York, NY 10175 Oconnor McGuiness Conte Doyle & Oleson, LLP, Attorneys for defendants, One Barker Ave., White Plains, NY 10604
Greenberg & Merola, Attorney for plaintiff, 521 5th Ave. Floor 1700, New York, NY 10175
Oconnor McGuiness Conte Doyle & Oleson, LLP, Attorneys for defendants, One Barker Ave., White Plains, NY 10604
Lawrence H. Ecker, J.
The following papers were considered on the application of J. B., an infant by his father and natural guardian, RAYMOND BELANFANTE ("petitioner") brought by Order to Show Cause [Mot. Seq. 2] , dated April 1, 2019, for an order pursuant to GML § 50-e, granting movant leave to file a late notice of claim as against MT. VERNON CITY SCHOOL DISTRICT ("respondent"):
Petitioner withdrew a previous Order to Show Cause [Mot. Seq. 1] that was submitted on August 9, 2018, but never signed. [NYSCEF No. 18 ].
PAPERS
Order to Show Cause, Verified Petition, Affidavits (3) in Support, and Exhibits a-c
Affirmation in Opposition, Memorandum of Law in Opposition and Exhibit A
Reply Affirmation
Upon the foregoing papers, the court determines as follows:
Petitioner is the father and natural guardian of infant, J.B. ("the infant"). He alleges that the infant sustained physical injuries as the result of bullying while a student ("the other child") at Rebecca Turner Elementary School, which is part of respondent school district.
The First Notice of Claim was served on respondent on July 25, 2018. [NYSCEF No. 23 ]. The notice stated that it was based on incidents that occurred "from approximately October 2014 through May 2016", and provided no additional dates or details. Petitioner alleged that the injuries that occurred as the result of the bullying were a fractured clavicle and bruises, and sought $1,000,000 in damages. Petitioner withdrew the First Notice of Claim on November 18, 2018. [NYSCEF No. 18 ].
Petitioner next served an Amended Notice of Claim, dated January 21, 2019, on or about March 5, 2019. [NYSCEF No. 24 ]. The Amended Notice of Claim broadly alleges that "respondent, their organizations, entities, agents, servants, volunteers and/or employees" were negligent.
As for the "time when, the place where and the manner in which the claim arose," the Amended Notice of Claim reiterates the original allegations from the previous notice that the claims are based on incidents "from approximately October 2014 through May 2016", and the infant suffered $1,000,000 in damages. In terms of details as to the facts underlying incidents, the Amended Notice of Claim further provides that:
"4. On October 10, 2014, while in ... first grade class [the infant] was pushed by [the other child].
5. On March 16, 2015, while in ... first grade class [the infant] was purposefully pushed by [the other child] down the slide while on the playground ... which resulted in [the infant's] eyelid to suffer an abrasion and bleeding.
6. On May 18, 2016, during recess, [the infant] was purposefully pushed by [the other child] while on the playground ... which resulted in [the infant's] fractured clavicle." [NYSCEF No. 24 ].
Based on the uncontested facts, a notice of claim was required to have been filed within 90 days of, at the latest, May 18, 2016 (the last incident), creating a due date of August 18, 2016. Petitioner filed the First Notice of Claim almost two years late, on July 25, 2018.
The Amended Notice of Claim was served on March 5, 2019. As such, the Amended Notice of Claim was served almost two years and eight months (thirty-three months and 18 days) after the last incident, and two years and five months (thirty months, 18 days) past the 90-day statutory deadline.
Petitioner now moves, by motion filed on April 1, 2019, for an order pursuant to GML § 50-e, granting leave to file a late notice of claim as against respondent. In support of the motion, petitioner submits an affidavit stating that, in October 2014, the infant reported that he was being bullied by the other student. [NYSCEF No. 22 ]. Petitioner claims that he requested a meeting with the principal but the principal refused.
The infant also submits an affidavit in which he reaffirms, in essence, the facts set forth by petitioner concerning the three incidents.[NYSCEF No. 20 ].
Petitioner avers that, on or about March 16, 2015, the infant received a cut above the eye from an interaction with the other student and the supervising teacher ruled the incident an accident. Just over a year later, on or about April 21, 2016, the infant was pushed or bumped into the other student, causing an abrasion on the left eyelid and, petitioner alleges, the principal ruled the incident an accident.
On or about May 18, 2016, the infant suffered a fractured clavicle when the other student allegedly ran into him or pushed him. According to petitioner, on May 20, 2016, he met with the principal and informed the principal that the infant was not playing with the other student when he was injured. Petitioner avers that, during the meeting, the "principal acknowledged that we had spoken many times regarding [the infant] being bullied and repeatedly injured by his classmate and acknowledged that he saw a pattern of incidents between the boys."
Petitioner alleges, without any details, that he attended a Board of Education meeting and requested a meeting with the Superintendent. Petitioner avers that the Superintendent's office informed petitioner that a meeting was unnecessary as petitioner had already met with the principal and the nurse.
Petitioner avers, without specifying dates, that he met with the Director of Student Services ("the Director") to request that the infant be home schooled and explained the circumstances. The Director denied the request. Petitioner alleges that he asked that the infant be transferred to another school, and said request was denied, but provides no further details with regard to this alleged interaction.
In terms of justifying the delay in filing the Notice of Claim, petitioner avers that he was unaware that a Notice of Claim needed to be filed until his attorney informed him of the fact. He also states, without any details, that his wife was scheduled for a medical procedure on or about June 29, 2016, and had various medical appointments until February 2018, when she underwent surgery. It was sometime after the procedure that petitioner contacted an attorney.
In opposition, respondent submits the affidavit of Jamal Doggett, the principal of the school in which he avers that, due to the delay in years in serving the Amended Notice of Claim, the school district is prejudiced. He states that since the Amended Notice was received years after the dates of the alleged incidents, the school district is deprived of any reasonable opportunity to further investigate the incidents. He avers that the timing, location, motivations, observations, and memories of parties and witnesses, teachers, administrators and students, who have graduated since the incidents, is damaged.
In addition, the principal avers that he did not receive any notification of an incident in October 2014, and did not have a record of any request by petitioner to meet or of denying such a request. He states that it would have been a violation of his custom and practice to decline such a meeting. The principal avers that his staff has no independent recollection of the infant being the target of a bully or involved in any altercations, and the staff's memories from that time have faded. As for the March 2015 incident, he again has no record of the incident and the staff has no independent recollection of such an incident.
As for the April 21, 2016, and May 18, 2016, incidents, he does not deny knowledge of the general incident, but alleges that an investigation of the claims would be compromised by the passage of time. He states:
"Further allegations that [respondent] improperly provided supervision of its students or its agents, and relevant information regarding background facts or other relevant circumstances that may have allegedly contributed to the occurrence, all constitute very fact-sensitive forms of information that require extensive investigation. To the extent that such information may have existed at one time back in 2014, 2015 and 2016, the ability to follow-up and either verify or deny the allegations is limited by the passage of time-all as a result of the petitioner's failure to follow the dictates of law by timely proving notification.
As mentioned above, all of petitioner's widely-ranging allegations of misconduct against [respondent] implicate various aspects of fact, including witness observations, claims regarding duration of the occurrences, surrounding facts and interaction between the participants, etc., all of which have been undeniably obscured as [due to delay]. Likewise, the purported breach of duties and responsibility by the respondent's own actors, agents and employees who allegedly failed to properly secure the safety of [the infant] requires follow-up investigation that is now limited by virtue of the petitioner's improper failure to conform with the Notice of claim rules."
The Motion
Petitioner now moves, by motion filed on April 1, 2019, for an order pursuant to GML § 50-e, granting leave to file a late notice of claim as against respondent. A notice of claim must generally be filed within 90 days after the claim arises. GML § 50—e[1]. Timely service of a notice of claim is a condition precedent to a lawsuit sounding in tort against a public corporation, including school districts. Matter of Palisay v. City of New York , ––– AD3d ––––, 2019 NY Slip Op. 04172 [2d Dept 2019]. The purpose of the notice of claim requirement is to afford school districts an opportunity to investigate claims and obtain evidence promptly while it is still readily available. Motta by Motta v. Eldred Central School District , ––– AD3d ––––, 2019 NY Slip Op. 03714 [3d Dept 2019].
Based on the uncontested facts, the notice of claim in this matter was required to have been filed within 90 days of, at the latest, May 18, 2016 (the last incident), creating a due date of August 18, 2016. The Amended Notice of Claim was served on March 5, 2019, and was therefore served almost two years and eight months (thirty-three months and 18 days) after the last incident, and two years and five months (thirty months, 18 days) beyond the 90-day statutory deadline. As such, it is undisputed that petitioner's notice of claim was late.
Petitioner filed the First Notice of Claim almost two years late, on July 25, 2018.
Pursuant to General Municipal Law § 50-e(5), however, upon application, the Supreme Court, in its discretion, may extend the time to serve a notice of claim upon a public corporation as required by General Municipal Law § 50-e(1). Id., supra . Of import, the burden to show that circumstances warrant the grant of leave to file late notice is on petitioner. Harris v. City of New York, 297 AD2d 473 [1st Dept 2002]. An application for leave to serve a late notice of claim is addressed to the sound discretion of the trial court. Zelin v. Blind Brook-Rye Union Free School District , 164 AD3d 1352 [2d Dept 2018].
In determining whether to grant leave to serve a late notice of claim under General Municipal Law § 50—e(5), a court must consider all relevant facts, including, but not limited to, whether: (1) the school district 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 demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (4) the school district was substantially prejudiced by the delay in its ability to maintain its defense on the merits. J.B. v. Singh , ––– AD3d ––––, 2019 NY Slip Op. 04123 [2d Dept 2019] ; see Matter of Newcomb v. Middle Country Cent. Sch. Dist. , 28 NY3d 455, 460-461 [2016]. Neither the presence nor absence of any one factor is determinative. J.B. v. Singh , supra ; Matter of Johnson v. County of Suffolk , 167 AD3d 742 [2d Dept 2018].
Actual knowledge:
Although the presence or absence of any one factor is not necessarily determinative, actual knowledge of the essential facts underlying the claim within 90 days after the claim arose or within a reasonable time thereafter, is the most important factor. D.M. v. Center Moriches Union Free School District , 151 AD3d 970 [2d Dept 2017] ; see John P. v. Plainedge Union Free School District , 165 AD3d 1263 [2d Dept 2018]. Hence, while the absence of a reasonable excuse is not necessarily fatal when weighed against other relevant factors, whether the school district acquired timely, actual knowledge of the essential facts constituting the claim is of great importance. J.B. v. Singh , supra ; see Matter of City of New York v. County of Nassau , 146 AD3d 948 [2d Dept 2017].
In order to have actual knowledge of the essential facts constituting the claim, a school district must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim. Matter of D.M. v. Center Moriches Union Free Sch. Dist. , supra . The school district need not have specific notice of the theory or theories themselves. See Matter of Govt. Employees Ins. Co. v. Suffolk Co. Police Dept. , 152 AD3d 517 [2d Dept 2017]. However, generally, the phrase "facts constituting the claim" is understood to mean the facts which would demonstrate a connection between the happening of the accident and any negligence on the part of the school district. The school district must have notice or knowledge of the specific claim and not merely some general knowledge that a wrong has been committed. Matter of Placido v. County of Orange , 112 AD3d 722, 723 [2d Dept 2013] ; see Rayson v. New York City Health and Hospitals Corp. , 165 AD3d 948 [2d Dept 2018].
Here, even assuming notice on respondent's part of all three alleged incidents, petitioner fails to establish that respondent had actual notice of the essential facts constituting the claim, as opposed to merely notice of the subject incidents and injury. See Palisay v. City of New York, supra . Petitioner's allegations that the incidents occurred does not prove that the school district had actual notice of all of the underlying facts and that a lawsuit might arise therefrom. Certainly, the fact that the infant had been injured during school, assuming that petitioner's allegations are all true, did not provide the respondents with actual knowledge of the facts underlying the petitioner's negligent supervision claim. See Zelin v. Blind Brook-Rye Union Free School District, supra; Harding v. Yonkers Central School District, supra Contrary to petitioner's implication, moreover, the direct involvement of respondent's staff, after the incidents, without more, is not sufficient to establish that respondent had actual knowledge of the essential facts constituting the claims. Doe v. Taylor , 164 AD3d 469 [2d Dept 2018] ; Matter of D'Agostino v. City of New York, 146 AD3d 880 [2d Dept 2017].
Furthermore, the allegations involving the Board of Education and the Director are not referenced in the Amended Notice of Claim, and petitioner's allegations as to these meetings are irrelevant and unsubstantiated by any evidence. Accordingly, petitioner fails to show that respondents acquired actual knowledge of the essential facts constituting the claims within 90 days after the claim arose or a reasonable time thereafter. See Zelin v. Blind Brook-Rye Union Free School District, supra.
Reasonable excuse and Infancy:
As to the element of reasonableness of delay, petitioner's explanation for the delay is insufficient because lack of knowledge of the General Municipal Law or the possibility of a lawsuit does not qualify as a reasonable excuse for the delay in serving a notice for years. See Stark v. West Hempstead Union Free School District, 127 AD3d 765 [2d Dept 2015] ; Matter of Felice v. Eastport/South Manor Central School District , 50 AD3d 138 [2d Dept 2008] (claimant's ignorance of the notice of claim requirement is not an acceptable excuse). Moreover, petitioner's vague assertion that his wife was ill is conclusory and not supported by any evidence, and, in any event, does not justify the years of delay in serving the notice. Doe v. Taylor, 164 AD3d 469 [2d Dept 2018] ; see Matter of Romeo v. Long Is. Power Auth., 133 AD3d 667, 668 [2d Dept 2015].
Nor does petitioner establish a connection between the infancy and the failure to timely serve a notice of claim. Infancy alone is insufficient as the infancy of the injured child, standing alone, does not compel the granting of an application for leave to serve a late notice of claim. Doe v. Taylor , supra . So, 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 in this matter is a factor militating against granting leave. Doe v. Taylor , supra ; see Williams v. Nassau County Med. Ctr. , 6 NY3d 531, 538 [2006].
Substantially Prejudiced by Delay in Ability to Maintain Defenses on the Merits:
As to the element of whether respondent has been substantially prejudiced by the delay beyond the 90-day statutory limit in maintaining a defense on the merits, petitioner merely argues that respondent "will not be prejudiced in their defense of this claim as they knew all of the surrounding facts and circumstances of the incidents ...." [NYSCEF No. 21 ]. Without more, petitioner fails to satisfy his initial burden of showing that respondent would not be substantially prejudiced in maintaining a defense on the merits as a result of the delay. Coronel v. New Jersey Transit Corporation , ––– AD3d ––––, 2019 NY Slip Op. 04676 [2d Dept 2019]. By relying only on this vague, unsubstantiated statement, petitioner fails to present "some evidence or plausible argument" supporting a finding that the respondent will not be substantially prejudiced by the almost three-year delay in seeking leave to serve a late notice of claim. Matter of Harding v. Yonkers Central School District , 170 AD3d 725 [2d Dept. 2019] ; Zelin v. Blind Brook-Rye Union Free School District, supra .
In any event, respondent comes forward with particularized evidence showing that the late notice substantially prejudiced its ability to defend the claim on the merits. M.L. v. City of New York, ––– AD3d ––––, 2019 NY Slip Op. 04686 [2d Dept 2019]. The principal details the extreme prejudice to any investigation that would result from the years in delay in commencing this action. Notably, the delay prevented respondent from promptly conducting a thorough investigation and obtaining a timely interview and medical examination of the infant. Matter of Harding v. Yonkers Central School District , supra .
Of note, the court may consider the risk of change in circumstances, loss of witnesses, fading memories that may hinder an accurate investigation and reconstruction of the circumstances existing at the time of the incident. Here there is a very real danger of changed conditions in this case which would prevent an accurate reconstruction of the circumstances existing at the time that the accident occurred. See Karvitz v. Rockland County, 112 AD2d 252 [2d Dept 1985]. Under the circumstances, petitioner fails to satisfy the initial burden of showing that the late notice of claim will not substantially prejudice the respondents. See Palisay v. City of New York, supra.
Conclusion
Here, petitioner does not demonstrate that respondent obtained timely, actual knowledge of the essential facts constituting the claim. See Matter of Ronness v. City of New York , 151 AD3D 976 [2d Dept 2017]. Petitioner also fails to set forth a reasonable excuse for not serving a timely notice of claim, resulting in the notice being filed years late. See Stark v. West Hempstead Union Free School District, supra . Moreover, petitioner fails to satisfy the initial burden of showing that respondent would not be substantially prejudiced in maintaining a defense as a result of the long delay. Matter of D'Agostino v. City of New York, 146 AD3d 880 [2d Dept 2017] ; Matter of Mohamed v. New York City , 139 AD3d 858 [2d Dept 2016]. In view of the foregoing and upon consideration of "all [the] relevant facts and circumstances" ( General Municipal Law § 50-e[5] ), the application to file a late Notice of Claim is denied.
Respondent also argues that the Amended Notice of Claim is deficient as lacking sufficient details and necessary facts. In light of the finding herein, the court need not determine whether the Amended Notice of Claim is adequate.
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The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the court, it is hereby denied. Accordingly, it is hereby
ORDERED and JUDGED that the petition of petitioner for permission to file a late Notice of Claim, pursuant to GML § 50-e, is denied, and the proceeding is dismissed.
The foregoing constitutes the Decision, Order and Judgment of the court.