Opinion
2014-08886, Index No. 2646/14.
09-16-2015
In the Matter of Diamond Ella McKenzie REGAN, etc., et al., appellants, v. CITY OF NEW YORK, et al., respondents.
Feiner & Lavy, P.C., New York, N.Y. (Stephanie Emanuel of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Drake A. Colley of counsel), for respondents.
Feiner & Lavy, P.C., New York, N.Y. (Stephanie Emanuel of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Drake A. Colley of counsel), for respondents.
CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
Opinion In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the petitioners appeal from an order of the Supreme Court, Queens County (Kerrigan, J.), entered May 16, 2014, which denied the petition.
ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying that branch of the petition which was for leave to serve a late notice of claim upon the respondents New York City Department of Education and Village Academy and substituting therefor a provision granting that branch of the petition; as so modified, the order is affirmed, with costs to the petitioners payable by the respondents New York City Department of Education and Village Academy.The infant petitioner is a student at the respondent Village Academy, a New York City public school under the control and direction of the respondent New York City Department of Education (hereinafter the DOE). The petitioners allege that on October 2, 2013, the infant petitioner was confronted by two classmates who threatened her and attempted to start a physical altercation. The infant petitioner's mother, the petitioner Wanda Regan (hereinafter Regan), immediately reported the incident to the principal of Village Academy and requested a meeting with the parents of the other two students. The petitioners allege that the principal failed to contact the parents of the other students, no meeting was ever organized, and no disciplinary measures were taken. On October 9, 2013, the infant petitioner allegedly sustained injuries when she was attacked on school grounds and severely beaten by the same two classmates. Approximately one month after the expiration of the 90–day deadline to serve a notice of claim, the petitioners commenced this proceeding for leave to serve a late notice of claim. The Supreme Court denied the petition.
The Supreme Court providently exercised its discretion in denying the petition insofar as it sought to serve a late notice of claim upon the respondent City of New York. The merits of a claim are not examined on a motion for leave to serve a late notice of claim (see Matter of Day v. Greenburgh Eleven Union Free School Dist., 88 A.D.3d 877, 877, 931 N.Y.S.2d 513 ; Matter of Gaeta v. Incorporated Vil. of Garden City, 72 A.D.3d 683, 897 N.Y.S.2d 653 ). However, permission to serve a late notice of claim is properly denied where the underlying claim is “patently meritless” (Matter of Catherine G. v. County of Essex, 3 N.Y.3d 175, 179, 785 N.Y.S.2d 369, 818 N.E.2d 1110 ). Here, the court properly determined that the City is not a proper party to these proceedings (see Campbell v. City of New York, 203 A.D.2d 504, 611 N.Y.S.2d 248 ), so that any claim against it is patently meritless.
However, the Supreme Court improvidently exercised its discretion in denying that branch of the petition which sought leave to serve a late notice of claim upon the DOE and Village Academy.
General Municipal Law § 50–e(5) permits a court, in its discretion, to extend the time to serve a notice of claim (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 535, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ; Kellman v. Hauppauge Union Free Sch. Dist., 120 A.D.3d 634, 635–637, 991 N.Y.S.2d 128 ; Matter of Lodati v. City of New York, 303 A.D.2d 406, 755 N.Y.S.2d 853 ). “Whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter is seen as a factor which should be accorded great weight in determining whether or not to grant leave to serve a late notice of claim” (Kellman v. Hauppauge Union Free Sch. Dist., 120 A.D.3d at 635, 991 N.Y.S.2d 128 ). The court must also consider other relevant circumstances, including: (1) whether the claimant was an infant at the time the claim arose and, if so, whether there was a nexus between the petitioner's infancy and the delay in service of a notice of claim; (2) whether the claimant had a reasonable excuse for the delay; and (3) whether the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see General Municipal Law § 50–e [5] ; Matter of Newcomb v. Middle Country Cent. Sch. Dist., 128 A.D.3d 701, 8 N.Y.S.3d 422 ; Matter of Fox v. New York City Dept. of Educ., 124 A.D.3d 887, 888, 2 N.Y.S.3d 210 ).
Timely notice of the facts underlying the claim must be acquired within the 90–day period “or a reasonable time thereafter” (Matter of Gershanow v. Town of Clarkstown, 88 A.D.3d 879, 880, 931 N.Y.S.2d 131 ). Here the DOE and Village Academy received the petition for leave to serve a late notice of claim approximately one month after the expiration of the 90– day period. Thus, the DOE and Village Academy acquired actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the 90–day period (see Matter of Gershanow v. Town of Clarkstown, 88 A.D.3d at 880, 931 N.Y.S.2d 131 ; Matter of Ambrico v. Lynbrook Union Free School Dist., 71 A.D.3d 762, 763, 896 N.Y.S.2d 169 ; Matter of Gelish v. Dix Hills Water Dist., 58 A.D.3d 841, 842, 872 N.Y.S.2d 486 ).
Because the DOE and Village Academy acquired timely knowledge of the essential facts constituting the petitioners' claim, the petitioners met their initial burden of showing a lack of prejudice (see Matter of Viola v. Ronkonkoma Middle Sch., 107 A.D.3d 1009, 1010, 968 N.Y.S.2d 876 ; Matter of Joy v. County of Suffolk, 89 A.D.3d 1025, 1026, 933 N.Y.S.2d 369 ; Matter of Allende v. City of New York, 69 A.D.3d 931, 933, 894 N.Y.S.2d 472 ). The DOE and Village Academy's conclusory assertions of prejudice, based solely on the petitioners' one-month delay in serving the notice of claim, were insufficient to rebut the petitioners' showing (see Matter of Viola v. Ronkonkoma Middle Sch., 107 A.D.3d at 1010, 968 N.Y.S.2d 876 ). Finally, while we find that the excuses proffered by the petitioners were not reasonable, the absence of a reasonable excuse is not fatal to the petition where there was actual notice and absence of prejudice (see Matter of Viola v. Ronkonkoma Middle School, 107 A.D.3d at 1010, 968 N.Y.S.2d 876 ; Matter of McLeod v. City of New York, 105 A.D.3d 744, 746, 962 N.Y.S.2d 641 ).
Accordingly, that branch of the petition which was for leave to serve a late notice of claim upon the DOE and Village Academy should have been granted.