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APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES.

The Fourth Department determined claimant’s application for leave to file a late notice of claim should not have been granted. Apparently plaintiff’s daughter was injured by a student from defendant school district who was subject to an order of protection requiring the student to stay away from the school attended by claimant’s daughter. Although claimant demonstrated defendant had timely knowledge of the order of protection but not demonstrate the defendant had timely knowledge of any injuries resulting from the violation of the order:

 

Supreme Court abused its discretion in granting claimant’s application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5) approximately one year after the incident in which her daughter was injured occurred. “It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are whether the claimant has demonstrated a reasonable excuse for the delay, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining a defense on the merits” … . “While the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether the [municipality] received actual knowledge of the facts constituting the claim in a timely manner” … . It is well established that “[k]nowledge of the injuries or damages claimed . .. , rather than mere notice of the underlying occurrence, is necessary to establish actual knowledge of the essential facts of the claim within the meaning of General Municipal Law § 50-e (5)” … , and the claimant has the burden of demonstrating that the respondent had actual timely knowledge … . Matter of Turlington v Brockport Cent. Sch. Dist., 2016 NY Slip Op 06572, 4th Dept 10-7-16

EDUCATION-SCHOOL LAW (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES)/MUNICIPAL LAW (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES)/NOTICE OF CLAIM (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES)

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