Opinion
2016–05818 Index No. 702967/16
04-18-2018
In the Matter of Lucia QUINONES, etc., appellant, v. CITY OF NEW YORK, et al., respondents.
Mandel Law Firm, New York, N.Y. (Ellen Zweig, Steven J. Mandel, and William M. Boyle of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Susan P. Greenberg, Ryan Budhu, and Dona B. Morris of counsel), for respondents.
Mandel Law Firm, New York, N.Y. (Ellen Zweig, Steven J. Mandel, and William M. Boyle of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Susan P. Greenberg, Ryan Budhu, and Dona B. Morris of counsel), for respondents.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, SANDRA L. SGROI, JJ.
DECISION & ORDER
In a proceeding pursuant to General Municipal Law § 50–e(5), the petitioner appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered June 6, 2016. The order denied her petition for leave to serve a late notice of claim.
ORDERED that the order is affirmed, with costs.
On March 16, 2015, the petitioner's child (hereinafter the child), then a pre-kindergarten student at the Bethel Mission Loving Day Care Center in Queens, allegedly was injured when she fell and hit her head on a table in a classroom. Approximately one year after the accident, the petitioner commenced this proceeding to serve a late notice of claim on the City of New York and the Administration for Children's Services (hereinafter together the City). The petition alleged that the City operated the day care center and that its negligent supervision and maintenance of the classroom caused the child's accident and injuries. The Supreme Court denied the petition. The petitioner appeals.
" ‘Timely service of a notice of claim is a condition precedent to a lawsuit sounding in tort and commenced against a municipality’ " ( Matter of Ramos v. Board of Educ. of the City of N.Y., 148 A.D.3d 909, 910, 49 N.Y.S.3d 539, quoting Matter of Zaid v. City of New York, 87 A.D.3d 661, 662, 928 N.Y.S.2d 579 ; see General Municipal Law § 50–e[1][a] ; Matter of McClancy v. Plainedge Union Free Sch. Dist., 153 A.D.3d 1413, 62 N.Y.S.3d 126 ). "The purpose of the statutory notice of claim requirement is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available" ( Vallejo–Bayas v. New York City Tr. Auth., 103 A.D.3d 881, 882, 962 N.Y.S.2d 203 ; see Matter of Ramirez v. City of New York, 148 A.D.3d 908, 50 N.Y.S.3d 103 ). " ‘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 Ramos v. Board of Educ. of the City of N.Y., 148 AD3d at 910, quoting Matter of Wooden v. City of New York, 136 A.D.3d 932, 932, 25 N.Y.S.3d 333 ).
" ‘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 Ramos v. Board of Educ. of the City of N.Y., 148 A.D.3d at 910, 49 N.Y.S.3d 539, quoting Matter of Tonissen v. Huntington U.F.S.D., 80 A.D.3d 704, 704–705, 915 N.Y.S.2d 296 ; see General Municipal Law § 50–e [5] ; Matter of McClancy v. Plainedge Union Free Sch. Dist., 153 A.D.3d 1413, 62 N.Y.S.3d 126 ).
The presence or absence of any one factor is not necessarily determinative, but whether the public corporation had actual knowledge of the essential facts constituting the claim is " ‘the most important, based on its placement in the statute and its relation to other relevant factors' " ( Horn v. Bellmore Union Free Sch. Dist., 139 A.D.3d 1006, 1007, 32 N.Y.S.3d 289, quoting Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 147, 851 N.Y.S.2d 218 ). 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 at 148, 851 N.Y.S.2d 218 ). "[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, 851 N.Y.S.2d 218 ; see Matter of Ramos v. Board of Educ. of the City of N.Y., 148 A.D.3d at 911, 49 N.Y.S.3d 539 ).
Here, the petitioner failed to establish that the City acquired actual knowledge of the essential facts constituting the claim within 90 days after the child's accident or a reasonable time thereafter. Although a teacher prepared an accident report on the day of the incident, it merely indicated that the child ran into the classroom, "slipped," and hit her head on a table. This report did not provide the City with timely, actual knowledge of the essential facts underlying the claims later asserted—that the City was negligent in allowing clutter and debris to accumulate on the floor which caused the child to "trip," and that it was negligent in supervising the students by failing to have a sufficient number of teachers in the classroom (see Matter of McClancy v.Plainedge Union Free Sch. Dist., 153 A.D.3d at 1413, 62 N.Y.S.3d 126 ; Matter of D.M. v. Center Moriches Union Free Sch. Dist., 151 A.D.3d 970, 972, 54 N.Y.S.3d 161 ; Matter of Saponara v. Lakeland Cent. Sch. Dist., 138 A.D.3d 870, 871, 29 N.Y.S.3d 491 ; Matter of Anderson v. Town of Oyster Bay, 101 A.D.3d 708, 709, 955 N.Y.S.2d 183 ; Matter of Werner v. Nyack Union Free School Dist., 76 A.D.3d 1026, 908 N.Y.S.2d 103 ).
Furthermore, the petitioner failed to demonstrate a reasonable excuse for her failure to serve a timely notice of claim. The child's infancy alone, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse (see Matter of D.M. v. Center Moriches Union Free Sch. Dist., 151 A.D.3d at 972, 54 N.Y.S.3d 161 ; Matter of A.C. v. West Babylon Union Free Sch. Dist., 147 A.D.3d 1047, 1049, 48 N.Y.S.3d 422 ; Matter of Tonissen v. Huntington U.F.S.D., 80 A.D.3d at 705, 915 N.Y.S.2d 296 ). The petitioner's mistaken belief that the day care center was privately owned is also unacceptable under the circumstances of this case. The petitioner's failure to ascertain the City's affiliation with the day care center was due to a lack of due diligence in investigating the matter (see Kelly v. City of New York, 153 A.D.3d 1388, 63 N.Y.S.3d 385 ; Matter of Placido v. County of Orange, 112 A.D.3d 722, 977 N.Y.S.2d 64 ; Matter of Moore v. New York City Hous. Auth., 89 A.D.3d 1088, 933 N.Y.S.2d 606 ; Matter of Devivo v. Town of Carmel, 68 A.D.3d 991, 891 N.Y.S.2d 154 ). The accident report and the school's website information, which the petitioner printed out and attached to her petition, clearly showed the day care center's affiliation with the City.
Finally, the petitioner "presented no ‘evidence or plausible argument’ that its delay in serving a notice of claim did not substantially prejudice" the City in defending on the merits ( Matter of Government Empls. Ins. Co. v. Suffolk County Police Dept., 152 A.D.3d 517, 518, 58 N.Y.S.3d 514, quoting Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; see Matter of D.M. v. Center Moriches Union Free Sch. Dist., 151 A.D.3d at 972, 54 N.Y.S.3d 161 ; Matter of A.C. v. West Babylon Union Free Sch. Dist., 147 A.D.3d at 1049, 48 N.Y.S.3d 422 ). A balancing of the relevant factors (see General Municipal Law § 50–e[5] ) therefore demonstrates that the Supreme Court providently exercised its discretion in denying the petition for leave to serve a late notice of claim.
BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.