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Application to File Late Notice of Claim (One Month Late) on Behalf of Infant Claimant Injured at School Should Not Have Been Granted

The Second Department determined Supreme Court should not have granted claimants’ application to file a late notice of claim against a school district.  Claimant alleged infant claimant (Zachary) was injured playing touch football and the school did not provide adequate supervision.  In finding the criteria for allowing the filing of a late notice were not met, the court wrote:

The key factors to be considered in determining whether to grant leave to serve a late notice of claim are (1) whether the claimant or claimants demonstrated a reasonable excuse for the failure to timely serve a notice of claim, (2) whether one or more of the claimants was an infant at the time the claim arose and, if so, whether there was a nexus between the infancy and the delay in service of a notice of claim, (3) whether the school district acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, and (4) whether the school district was substantially prejudiced by the delay in its ability to maintain its defense on the merits

Here, Zachary and his mother did not proffer sufficient proof to establish a reasonable excuse for their failure to serve a timely notice of claim upon the appellant … . Furthermore, Zachary’s infancy, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse … . In addition, while a school official prepared an accident claim form the day of the incident and a school medical claim form was filled out the day following the incident, those reports, which merely indicated that Zachary hurt his right knee playing two-hand touch football during physical education class, did not establish that the appellant had actual knowledge within 90 days of the incident or a reasonable time thereafter, of the essential facts underlying the claims of negligent supervision and that the school field constituted a defective and dangerous condition … . Accordingly, the appellant had no reason to conduct a prompt investigation into the purported negligent supervision and the alleged dangerous condition of the field … . Finally, Zachary and his mother failed to establish that the approximately one-month delay after the expiration of the 90-day statutory period would not substantially prejudice the appellant in maintaining a defense on the merits … . Matter of Manuel v Riverhead Cent Sch Dist, 2014 NY Slip Op 02939, 2nd Dept 4-30-14

Same result in claim against a fire district alleging medical malpractice and negligence in response to an accident.  Matter of Snyder v County of Suffolk, 2014 NY Slip Op 02942, 2nd Dept 4-30-14

 

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