Lamprecht v. Eastport-South Manor Cent. Sch. Dist.

• Decision Date: 24 June 2015
• Docket Number: 2014-11406
• Parties: In the Matter of Travis LAMPRECHT, etc., respondent, v. EASTPORT–SOUTH MANOR CENTRAL SCHOOL DISTRICT, appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1084

13 N.Y.S.3d 154

2015 N.Y. Slip Op. 05478

In the Matter of Travis LAMPRECHT, etc., respondent

v.EASTPORT–SOUTH MANOR CENTRAL SCHOOL DISTRICT, appellant.

2014-11406

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

June 24, 2015.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Michael T. Reagan of counsel), for appellant.

Joseph Aufenanger, Rockville Centre, N.Y., for respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

Opinion

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the Eastport–South Manor Central School District appeals from an order of the Supreme Court, Suffolk County (Spinner, J.), dated August 18, 2014, which granted the petition.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the petition is denied, and the proceeding is dismissed.

In determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, (2) the petitioner was an infant at the time the claim arose and, if so, whether there was a nexus between the petitioner's infancy and the failure to serve a timely notice of claim, (3) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (4) the public corporation was substantially prejudiced by the delay in its ability to maintain its defense on the merits (see Education Law § 3813[2–a] ; General Municipal Law § 50–e[5] ; Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 538, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ; Matter of McLeod v. City of New York, 105 A.D.3d 744, 745, 962 N.Y.S.2d 641 ; Bazile v. City of New York, 94 A.D.3d 929, 943 N.Y.S.2d 131 ; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 147–153, 851 N.Y.S.2d 218 ).

While the petitioner here is an infant, that fact alone does not compel the granting of a petition for leave to serve a late notice of claim (see Contreras v. 357 Dean St. Corp., 77 A.D.3d 604, 606, 908 N.Y.S.2d 734 ; Arias v. New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 A.D.3d 830, 832, 855 N.Y.S.2d 265 ). Here, the lengthy delay in seeking leave to serve a late notice of claim was not the product of the petitioner's infancy (see Arias v. New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 A.D.3d at 832, 855 N.Y.S.2d 265 ; Matter of Flores v. County of Nassau, 8 A.D.3d 377, 777 N.Y.S.2d 739 ; Matter of Cotten v. County of Nassau, 307 A.D.2d 965, 763 N.Y.S.2d 474 ). Furthermore, the principal excuse proffered for the delay in commencing this proceeding, that the petitioner did not want to sue his school or his teachers, was not a reasonable excuse for the delay and was unrelated to his infancy (see Matter of Formisano v. Eastchester Union Free School Dist., 59 A.D.3d 543, 544, 873 N.Y.S.2d 162 ; Doukas v. East Meadow Union Free School Dist., 187 A.D.2d 552, 553, 590 N.Y.S.2d 226 ).

Moreover, the petitioner failed to establish that the appellant acquired actual knowledge of the essential facts constituting his claim within 90 days after the accident or a reasonable ...