Keyes v. City of New York

Decision Date29 November 2011
Citation933 N.Y.S.2d 607,89 A.D.3d 1086,2011 N.Y. Slip Op. 08753
PartiesIn the Matter of Jasaiya KEYES, etc., et al., appellants, v. CITY OF NEW YORK, et al., respondents.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Rosenbaum & Rosenbaum, P.C., New York, N.Y. (Nathalie Trepelkova of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, Dona B. Morris, and Stephen S. Kim of counsel), for respondents.

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 (Flug, J.), entered January 14, 2011, which denied the petition.

ORDERED that the order is affirmed, with costs.

In exercising its discretion to grant leave to serve a late notice of claim, the court must consider various factors, including whether (1) the claimant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (2) the claimant was an infant, or mentally or physically incapacitated, (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation in defending on the merits ( see General Municipal Law § 50–e [5]; Matter of Iacone v. Town of Hempstead, 82 A.D.3d 888, 918 N.Y.S.2d 202; Matter of Barnes v New York City Health & Hosps. Corp., 69 A.D.3d 934, 893 N.Y.S.2d 613; Matter of Chambers v. Nassau County Health Care Corp., 50 A.D.3d 1134, 1135, 857 N.Y.S.2d 222).

Here, the petitioners failed to demonstrate that the respondents obtained actual knowledge of the essential facts constituting the claim that, inter alia, the respondents failed to protect the infant petitioner from being attacked by another student in the school's cafeteria. There was no evidence in the record to support the hearsay allegations of the infant petitioner's father that the infant petitioner reported the incident to a teacher or that the infant petitioner's grandmother had several meetings with the school's principal. Furthermore, the petitioners failed to allege that the respondents were made aware of any personal injury to the infant petitioner within 90 days after the incident or a reasonable time thereafter. Accordingly, the petitioners failed to demonstrate that the respondents acquired timely actual knowledge of the facts constituting the claim ( see Matter of Whittaker v. New York City Bd. of Educ., 71 A.D.3d 776, 778, 896 N.Y.S.2d 171; Matter of Smith v. Baldwin Union Free School Dist., 63 A.D.3d 1078, 1079, 881 N.Y.S.2d 488; Matter of Julie F. v. City of New York, 50 A.D.3d 794, 795, 855 N.Y.S.2d 622). Moreover, the petitioners failed to establish that the respondents would not be substantially prejudiced in maintaining their defense on the merits as a result of the delay in serving a notice of claim upon the...

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18 cases
  • Wright v. City of New York
    • United States
    • New York Supreme Court — Appellate Division
    • 3 Octubre 2012
    ...statutory period within which to serve a notice of claim by an unidentified attorney ( see Matter of Keyes v. City of New York, 89 A.D.3d 1086, 933 N.Y.S.2d 607). In any event, the petitioners' alleged ignorance of the law is not a reasonable excuse for their failure to serve a timely notic......
  • Etienne v. City of N.Y.
    • United States
    • New York Supreme Court — Appellate Division
    • 23 Diciembre 2020
    ...706 ; Matter of Walker v. Riverhead Cent. Sch. Dist., 107 A.D.3d 727, 728, 967 N.Y.S.2d 92 ; Matter of Keyes v. City of New York, 89 A.D.3d 1086, 933 N.Y.S.2d 607 ).Further, the petitioners' contention that the City acquired actual knowledge of the claim based on the allegations that its em......
  • Hampson v. Connetquot Cent. Sch. Dist.
    • United States
    • New York Supreme Court — Appellate Division
    • 13 Febrero 2014
    ...students to stop “horsing around,” and did nothing further to control the students' behavior ( see Matter of Keyes v. City of New York, 89 A.D.3d 1086, 933 N.Y.S.2d 607). Moreover, the parent notification form prepared by the school's nurse informing the parents of the incident was insuffic......
  • Naar v. City of N.Y.
    • United States
    • New York Supreme Court — Appellate Division
    • 23 Mayo 2018
    ...accident (see Matter of Walker v. Riverhead Cent. Sch. Dist., 107 A.D.3d 727, 728, 967 N.Y.S.2d 92 ; Matter of Keyes v. City of New York, 89 A.D.3d 1086, 1086, 933 N.Y.S.2d 607 ; Santana v. Western Regional Off–Track Betting Corp., 2 A.D.3d 1304, 1305, 770 N.Y.S.2d 258 ; Matter of Spaulding......
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