Opinion
2012-12-19
Melodie TEGAY, appellant, v. ROCKY POINT SCHOOL DISTRICT, et al., respondents, et al., defendant.
David Gordon, Highmount, N.Y., for appellant. Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for respondents.
David Gordon, Highmount, N.Y., for appellant. Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for respondents.
DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated November 16, 2011, which denied her motion pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim.
ORDERED that the order is affirmed, with costs.
In determining whether to permit service of a late notice of claim, the court must consider all relevant circumstances, including whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter, whether the claimant demonstrated a reasonable excuse for the delay in serving a timely notice of claim, and whether the delay would substantially prejudice the public corporation in defending on the merits ( seeEducation Law § 3813 [2–a]; General Municipal Law § 50–e[5]; Matter of Ambrico v. Lynbrook Union Free School Dist., 71 A.D.3d 762, 763, 896 N.Y.S.2d 169;Matter of Acosta v. City of New York, 39 A.D.3d 629, 630, 834 N.Y.S.2d 267;Matter of Andrew T.B. v. Brewster Cent. School Dist., 18 A.D.3d 745, 746, 795 N.Y.S.2d 718).
Here, the plaintiff did not proffer any excuse for her lengthy delay in seeking leave to serve a late notice of claim ( see Matter of Jackson v. Newburgh Enlarged City School Dist., 85 A.D.3d 1031, 1032, 925 N.Y.S.2d 856;Matter of Castro v. Clarkstown Cent. School Dist., 65 A.D.3d 1141, 1142, 885 N.Y.S.2d 508;Troy v. Town of Hyde Park, 63 A.D.3d 913, 914, 882 N.Y.S.2d 159). Furthermore, the plaintiff failed to demonstrate that the respondents had timely, actual knowledge of the essential facts constituting her claim that the respondents made defamatory statements regarding her conduct as an employee, and that these statements were made with malice ( see Bayer v. City of New York, 60 A.D.3d 713, 714, 875 N.Y.S.2d 209;Forrest v. Berlin Cent. School Dist., 29 A.D.3d 1230, 1231, 815 N.Y.S.2d 774). Moreover, the plaintiff did not establish that the delay did not substantially prejudice the respondents' ability to investigate and defend against the claim ( see Matter of Devivo v. Town of Carmel, 68 A.D.3d 991, 891 N.Y.S.2d 154;Matter of Avalos v. City of N.Y. Bd. of Educ., 67 A.D.3d 675, 886 N.Y.S.2d 910;Matter of Formisano v. Eastchester Union Free School Dist., 59 A.D.3d 543, 545, 873 N.Y.S.2d 162). Accordingly, the plaintiff's motion for leave to serve a late notice of claim was properly denied.