Lopez v. Hicksville Public Sch. Dist., 01-04182

• Decision Date: 17 December 2001
• Docket Number: 2,01-04182
• Parties: LUZA MARINA LOPEZ, ETC., RESPONDENTS, v. HICKSVILLE PUBLIC SCHOOL DISTRICT, APPELLANT, ET AL., DEFENDANT. 2001-04182 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Submitted -
• Court: New York Supreme Court — Appellate Division

LUZA MARINA LOPEZ, ETC., RESPONDENTS v HICKSVILLE PUBLIC SCHOOL DISTRICT, APPELLANT, ET AL., DEFENDANT

2001-04182

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Submitted - October 31, 2001

December 17, 2001

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Garden City, N.Y. (Kathleen D. Foley of counsel), for appellant.

John F. Navaretta, P.C., Syosset, N.Y. (Gina Howard of counsel), for respondent.

DECISION & ORDER

David S. Ritter, J.P.

Gloria Goldstein

William D. Friedmann

Sandra J. Feuerstein

Stephen G. Crane, JJ.

In an action to recover damages for personal injuries, the defendant Hicksville Public School District appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated April 16, 2001, which granted the plaintiff's motion, in effect, for leave to serve a late notice of claim, and denied its cross motion to dismiss the complaint insofar as asserted against it for failure to timely serve a notice of claim.

ORDERED that the order is reversed, as a matter of discretion, with costs, the motion is denied, the cross motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.

In determining whether to grant an application for leave to serve a late notice of claim, the court must consider (1) whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter, (2) whether the claimant was an infant or mentally or physically incapacitated, (3) whether the claimant had a reasonable excuse for the delay in serving a notice of claim, and (4) whether the public corporation was prejudiced by the delay (see, General Municipal Law §§ 50-e[5]; Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256; Rogers v. City of Yonkers, 271 A.D.2d 593). The plaintiff failed to establish that the appellant was not prejudiced, the claim articulated in the proposed notice of claim had any merit, or the delay in attempting to serve the notice of claim was related to infancy or could be reasonably excused (see, Matter of Sheff v. County of Westchester, 279 A.D.2d 632; Matter of Bagnasco v. Suffolk County Water Auth., 272 A.D.2d 611; Safir v Metro-North Commuter R.R. Co., 260 A.D.2d 462; Matter f Finneran v. City of New York, 228 A.D.2d 596, 597). Thus, the Supreme Court improvidently granted the plaintiff's motion and...