Ramos v. Bd. of Educ. of N.Y.

• Decision Date: 15 March 2017
• Citation: 148 A.D.3d 909,49 N.Y.S.3d 539
• Parties: In the Matter of Ines RAMOS, etc., appellant, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, et al., respondents.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 909

49 N.Y.S.3d 539

In the Matter of Ines RAMOS, etc., appellant,

v.BOARD OF EDUCATION OF the CITY OF NEW YORK, et al., respondents.

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

March 15, 2017.

Goldstein & Goldstein, P.C., Brooklyn, NY (Mark I. Goldstein and Cindy A. Moonsammy of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, NY (Aaron Bloom and Randall L. Morrison, Jr., of counsel), for respondents.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Kings County (Genovesi, J.), dated October 23, 2015, which denied the petition.

ORDERED that the order is affirmed, with costs.

On May 9, 2014, Olga Lopez, a then-seventh-grade student at I.S. 61 in Corona, Queens, allegedly was injured while performing a floor exercise during her physical education class. Lopez allegedly complained to the physical education teacher about this particular exercise on prior occasions but was nonetheless directed to perform it. The following day, Lopez sought medical treatment, allegedly was diagnosed with a fractured spine

, and was directed to undergo physical therapy. On June 1, 2015, she underwent back surgery and was discharged from the hospital on June 4, 2015. On or about July 1, 2015, Lopez's mother, the petitioner, Ines Ramos, commenced this proceeding, on behalf of Lopez and individually, for leave to serve a late notice of claim upon the Board of Education of the City of New York and the City of New York (hereinafter together the City). The Supreme Court denied the petition.

"Timely service of a notice of claim is a condition precedent to a lawsuit sounding in tort and commenced against a municipality" (Matter of Zaid v. City of New York, 87 A.D.3d 661, 662, 928 N.Y.S.2d 579 ). This requirement also applies to tort actions brought against, inter alia, school districts and school boards (see Education Law § 3813[2] ; Matter of Quinn v. Wallkill Cent. Sch. Dist. Bd. of Educ., 131 A.D.3d 1063, 16 N.Y.S.3d 277 ). "The determination of an application for leave to serve and file a late notice of claim is left to the sound discretion of the trial court" (Matter of Unique Wooden v. City of New York, 136 A.D.3d 932, 932, 25 N.Y.S.3d 333 ). "In determining whether to grant leave to serve a late notice of claim, a court must consider whether: (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant was an infant or mentally or physically incapacitated, (3) the claimant had a reasonable excuse for the failure to serve a timely notice of claim, and (4) the delay would substantially prejudice the public corporation in its defense" (Matter of Tonissen v. Huntington U.F.S.D., 80 A.D.3d 704, 704–705, 915 N.Y.S.2d 296 ; seeGeneral Municipal Law § 50–e[5] ; Education Law § 3813 [2–a ]; Horn v. Bellmore Union Free Sch. Dist., 139 A.D.3d 1006, 1007, 32 N.Y.S.3d 289 ). "The presence or absence of any one factor is not necessarily determinative" (Horn v. Bellmore Union Free Sch. Dist., 139 A.D.3d at 1007, 32 N.Y.S.3d 289 ).

"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 138, 148, 851 N.Y.S.2d 218 ). "[K]nowledge of the accident itself and the seriousness of the injury does not satisfy this enumerated factor where those facts do not also provide the public corporation with knowledge of the essential facts constituting the claim" (id. at 155, 851 N.Y.S.2d 218 ; see Horn v. Bellmore Union Free Sch. Dist., 139 A.D.3d at 1008, 32 N.Y.S.3d 289 ). In addition, the mere awareness by school employees that a student has been injured is insufficient to establish that the public corporation had actual knowledge of the essential facts constituting the claim (see Matter of Lewis v. East Ramapo Cent. School Dist., 110 A.D.3d 720, 721–722, 972 N.Y.S.2d 326 ; Matter of Gunsam v. Eastern Suffolk Bd. of Coop. Educ. Servs., 109 A.D.3d 542, 543, 970 N.Y.S.2d 587 ).

While the infancy of the claimant is one of the listed factors, infancy alone does not compel the granting of a petition for leave to serve a late notice of claim (see Horn v. Bellmore Union Free Sch. Dist., 139 A.D.3d at 1008, 32 N.Y.S.3d 289 ; Matter of Lamprecht v. Eastport–South Manor Cent. Sch. Dist., 129 A.D.3d 1084, 1085, 13 N.Y.S.3d 154 ). In order for the infancy of a claimant to constitute a reasonable excuse for the failure to serve a timely notice of claim, the petitioner must show a nexus between the infancy and the delay (see Matter of Saponara v. Lakeland Cent. Sch. Dist., 138 A.D.3d 870, 871, 29 N.Y.S.3d 491 ; Matter of Manuel v. Riverhead Cent. Sch. Dist., 116 A.D.3d 1048, 1049, 984 N.Y.S.2d 409 ; Matter of Torres v. Tuckahoe Union Free School Dist., 94 A.D.3d 770, 771, 941 N.Y.S.2d 263 ). Moreover, where, as here, a parent alleges that he or s...