Newcomb v. Middle Country Cent. Sch. Dist.

• Decision Date: 22 December 2016
• Citation: 68 N.E.3d 714,45 N.Y.S.3d 895,2016 N.Y. Slip Op. 08581,28 N.Y.3d 455
• Parties: In the Matter of Raymond NEWCOMB et al., Appellants, v. MIDDLE COUNTRY CENTRAL SCHOOL DISTRICT, Respondent.
• Court: New York Court of Appeals Court of Appeals

28 N.Y.3d 455

68 N.E.3d 714

45 N.Y.S.3d 895

2016 N.Y. Slip Op. 08581

In the Matter of Raymond NEWCOMB et al., Appellants,

v.MIDDLE COUNTRY CENTRAL SCHOOL DISTRICT, Respondent.

Court of Appeals of New York.

Dec. 22, 2016.

Law Offices of Paul A. Montuori, P.C., Mineola (Paul A. Montuori of counsel), for appellants.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Christine Gasser of counsel), for respondent.

Michaels & Smolak, P.C., Auburn (Michael G. Bersani of counsel), for New York State Academy of Trial Lawyers, amicus curiae.

Edward H. Gersowitz, New York State Trial Lawyers Association, New York City, and Pollack Pollack Isaac & De Cicco, LLP, New York City (Brian J. Isaac of counsel), for New York State Trial Lawyers Association, amicus curiae.

OPINION OF THE COURT

DiFIORE, Chief Judge.

The issue in this appeal is whether the lower courts abused their discretion in denying petitioner's motion for leave to serve a late notice of claim.¹ We conclude that it is an abuse of discretion as a matter of law when, as here, a court determines, in the absence of any record evidence to support such determination, that a respondent will be substantially prejudiced in its defense by a late notice of claim. Here, the lower courts also improperly placed the burden of proving substantial prejudice solely on petitioner. We therefore reverse.

I.

Pursuant to General Municipal Law § 50–e (1)(a), a party seeking to sue a public corporation, which includes a school district, must serve a notice of claim on the prospective defendant "within ninety days after the claim arises."² General Municipal Law § 50–e (5) permits a court, in its discretion, to extend the time for a petitioner to serve a notice of claim.³ The statute requires the court to consider whether the public corporation "acquired actual knowledge of the essential facts constituting the claim within [90 days after the accrual of the claim] or within a reasonable time thereafter" (General Municipal Law § 50–e [5 ] ). Additionally, the statute requires the court to consider "all other relevant facts and circumstances" and provides a "nonexhaustive list of factors that the court should weigh" (Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 538–539, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006] ). One factor the court must consider is "whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits"(General Municipal Law § 50–e [5 ] ).

Turning to the specific facts of this case, on March 23, 2013, petitioner's son, who was 16 at the time, was hit by a car while attempting to cross an intersection and sustained what Supreme Court described as " devastating injuries" (2014 N.Y. Slip Op. 31320[U], *1, 2014 WL 2206196 [Sup.Ct., Suffolk County 2014] ). The driver fled the scene but was subsequently arrested. Within days, petitioner reported details of the accident, including the location and the nature of his son's injuries, to his son's high school, which is located within respondent Middle Country Central School District (the School District). Less than one month later, petitioner's counsel asked the police for the accident file, but the police told him that the record could not be supplied until the police investigation of the hit-and-run driver was closed. Unable to obtain the police file, petitioner had his own investigator photograph the accident site within 90 days of the accident. Petitioner timely served notices of claim on the State, Town, and County.

Over the next several months, petitioner and his counsel repeatedly asked the police department and district attorney for access to the police accident file. In September 2013, six months after the accident, petitioner's counsel finally received the file. Unlike the photographs taken by petitioner's investigator, the photographs in the file revealed that, at the time of the accident, there was a large sign at the corner of the intersection where petitioner's son was struck. This sign had been removed sometime after the accident, and it did not appear in the photographs taken by petitioner's investigator during the 90–day statutory period. Although the sign appeared in the police photographs, due to the size of the photographs, the lettering on the sign was illegible, even with magnification. Petitioner's counsel promptly requested an enlargement or the negative of the photographs. In November 2013, petitioner's counsel received the enlarged photographs, which revealed that the sign advertised a play at another high school located within the School District.

In late November 2013, five months after the 90–day statutory period for serving a notice of claim had expired, petitioner served a notice of claim on the School District by certified mail. The notice alleged that the School District's sign "obstruct[ed] the view of the corner and pedestrians thereupon," "creat[ed] a distraction for drivers," "obstruct[ed] the view of drivers upon the roadway," and "creat[ed] a dangerous and hazardous condition." Petitioner simultaneously filed an order to show cause for leave to serve a late notice of claim pursuant to General Municipal Law § 50–e (5) or to deem the notice timely served nunc pro tunc.

In the submissions accompanying his order to show cause, petitioner argued, as he does before this Court, that the School District had actual knowledge of the essential facts constituting petitioner's claim within a reasonable time after the accident both because petitioner reported the details of the accident, including its location, to his son's high school within days of its occurrence, and because the School District or its agents removed the sign from the accident scene within the 90–day statutory period. Petitioner further argued that he had a reasonable excuse for the late notice due to the delay caused by the ongoing criminal investigation into the hit-and-run driver which, despite petitioner and his counsel's diligent efforts, prevented them from obtaining legible photographs of the accident scene for nearly five months after expiration of the statutory period.

Lastly, petitioner argued that the School District was not substantially prejudiced by the late notice for several reasons. These included that the School District or its agents had placed the sign at the intersection and subsequently removed it during the 90–day statutory period; that the School District knew about the accident within a few days of its occurrence because petitioner had notified his son's high school; that the School District had access to the police report and photographs from the police file that would permit the School District to reconstruct the scene and to interview witnesses; and that, except for removal of the sign by the School District, the accident scene was unchanged, and could be inspected and investigated by the School District.

The School District's opposition consisted solely of an affirmation of counsel. The School District argued that it did not have actual knowledge of the essential facts because notice of the accident failed to connect the accident to the sign and the police accident report made no mention of the sign. The School District did not rebut petitioner's showing of lack of substantial prejudice other than to argue that petitioner bore the burden of establishing such lack of prejudice and had failed to do so. Additionally, the School District argued that, when a notice of claim is not served within 90 days or a reasonable time thereafter, the court should infer that the passage of time has created substantial prejudice due to fading witness memories.

In reply, petitioner noted that the School District had failed to submit affidavits or other evidence from a person with personal knowledge of how the School District would be substantially prejudiced by the late notice. Petitioner also argued that the School District's conclusory assertions that the passage of time creates an inference of prejudice were insufficient to meet the School District's burden of overcoming petitioner's showing of no substantial prejudice.

II.

Supreme Court, in determining whether petitioner should be permitted to serve the late notice of claim, considered four of the factors specified in General Municipal Law § 50–e (5) : whether there was (1) a nexus between petitioner's son's infancy and the delay in service, (2) a reasonable excuse for the delay, (3) actual knowledge on the part of the School District of the essential facts constituting the claim within the 90–day statutory period or within a reasonable time thereafter, and (4) substantial prejudice to the School District due to the delay. Regarding factors one and two, Supreme Court concluded that there was no nexus between petitioner's son's infancy and the delay, but that the delay was justified due to "the severity and continuing nature of [petitioner's son's] injuries" as well as petitioner's inability to obtain photographs of the scene due to the police investigation (2014 N.Y. Slip Op. 31320[U], *3). As to the third factor, Supreme Court concluded that the School District did not have actual knowledge of the essential facts within the statutory period or within a reasonable time thereafter because the School District had no actual notice that the sign may have contributed to the accident, and the police report did not mention the sign.

With respect to the fourth factor, substantial prejudice, Supreme Court placed the burden on petitioner to demonstrate that the School District was not substantially prejudiced by the delay in service.⁴ The court concluded that the matriculation and graduation of students in the interim, as well as personnel changes, "presumably hinder[ed]" the School District's ability to collect information about the sign (2014 N.Y. Slip Op. 31320[U], *4). Additionally, Supreme Court reasoned that prejudice could be " inferred" because "the mere passage of time creates prejudice with respect...