Kellman v. Hauppauge Union Free Sch. Dist.

• Decision Date: 20 August 2014
• Citation: 120 A.D.3d 634,991 N.Y.S.2d 128,2014 N.Y. Slip Op. 05844
• Parties: Joseph J. KELLMAN, etc., respondent, v. HAUPPAUGE UNION FREE SCHOOL DISTRICT, et al., appellants.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 634

991 N.Y.S.2d 128

2014 N.Y. Slip Op. 05844

Joseph J. KELLMAN, etc., respondent,

v.HAUPPAUGE UNION FREE SCHOOL DISTRICT, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 20, 2014.

Harris Beach PLLC, Uniondale, N.Y. (Susan E. Fine of counsel), for appellants.

Henry W. Davoli, Jr., PLLC, Rockville Centre, N.Y., for respondent.

L. PRISCILLA HALL, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated July 15, 2013, which granted the plaintiff's cross motion for leave to serve a late notice of claim upon the defendants pursuant to General Municipal Law § 50–e(5) and denied the defendants' motion to dismiss the complaint on the ground that the plaintiff failed to timely serve a notice of claim.

ORDERED that the order is affirmed, with costs.

In order to commence a tort action against a municipality, General Municipal Law § 50–e(1)(a) requires a claimant to serve a notice of claim upon that municipality within 90 days after the date that the claim arose ( see Jordan v. City of New York, 41 A.D.3d 658, 659, 838 N.Y.S.2d 624). 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; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 851 N.Y.S.2d 218; Matter of Lodati v. City of New York, 303 A.D.2d 406, 406–407, 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 ( see Matter of Dell'Italia v. Long Is. R.R. Corp., 31 A.D.3d 758, 759, 820 N.Y.S.2d 81; Matter of Battle v. City of New York, 261 A.D.2d 614, 615, 690 N.Y.S.2d 698; Matter of Morris v. County of Suffolk, 88 A.D.2d 956, 956, 451 N.Y.S.2d 448, affd.58 N.Y.2d 767, 459 N.Y.S.2d 38, 445 N.E.2d 214). “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 138, 851 N.Y.S.2d 218).

Other factors a court must consider in determining whether to grant leave to serve a late notice of claim are: (1) whether the claimant was an infant or mentally or physically incapacitated; (2) whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim; and (3) whether the delay would substantially prejudice the public corporation in maintaining its defense ( seeGeneral Municipal Law § 50–e[5]; Matter of Melissa G. v. North Babylon Union Free School Dist., 50 A.D.3d 901, 855 N.Y.S.2d 276; Jordan v. City of New York, 41 A.D.3d at 659, 838 N.Y.S.2d 624; Matter of Lodati v. City of New York, 303 A.D.2d at 407, 755 N.Y.S.2d 853). The presence or absence of any one of these factors is not necessarily determinative ( see Matter of Dell'Italia v. Long Is. R.R. Corp., 31 A.D.3d at 759, 820 N.Y.S.2d 81; Salvaggio v. Western Regional Off–Track Betting Corp., 203 A.D.2d 938, 939, 612 N.Y.S.2d 94).

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in granting the infant plaintiff's cross motion pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim. Two weeks before the injury at issue, the infant plaintiff sustained an ankle injury at school. The injury was tended to by the school nurse and documented in the school records. In connection with that first injury, the infant plaintiff wore a visible air cast on his leg, the school made accommodations for his injury, and the infant plaintiff did not participate in gym or sports activities. Moreover, the defendants had in their possession a note from the infant plaintiff's doctor, dated the same day as the first injury, advising that the infant plaintiff should not participate in sports until a reevaluation on April 20, 2012. For almost two weeks, the baseball coach, an employee of the defendants, refused to allow the infant plaintiff to participate in practice. However, before the scheduled reevaluation had occurred, the baseball coach directed the infant plaintiff to act as goalie in a “handball” game during baseball practice, and the coach was present when the infant plaintiff fell and injured his shoulder during that game. That day, the coach filled out an accident report which was subsequently signed by the school nurse and the principal and retained in the school records. The following day, the school nurse sent out email communications to other staff members, including the baseball coach, about the infant plaintiff's injury and the doctor's note. The coach also admitted to the infant plaintiff's father that he had allowed the infant plaintiff “to play goalie during the game and [he] shouldn't have” and told the infant plaintiff that “he will definitely get fired for what happened.” Accordingly, the defendants had actual knowledge of the essential facts underlying the legal theories on which liability is predicated well within the 90–day statutory period ( see Matter of Leeds v. Port Wash. Union Free School Dist., 55 A.D.3d...