The Second Department determined the petition for leave to file a late notice of claim for a student (Lopez) allegedly injured in gym class was properly denied:
Here, the petitioner failed to establish that the City had acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident or a reasonable time thereafter (see General Municipal Law § 50-e). While the petitioner alleges that the physical education teacher invented the particular exercise and was present when Lopez was injured, she failed to submit any evidence that the City acquired actual knowledge of the essential facts underlying their negligence claims … . Thus, the City had no reason to conduct a prompt investigation into the purported negligence … .
The petitioner also failed to proffer evidence establishing a reasonable excuse for her failure to serve a timely notice of claim … . Lopez’s infancy, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse … . Moreover, the assertion by the petitioner that she was consumed with Lopez’s medical care was also insufficient to constitute a reasonable excuse, as it was not supported by any evidence demonstrating that the delay in serving a notice of claim was directly attributable to Lopez’s medical condition … .
Finally, the petitioner failed to present “some evidence or plausible argument” supporting a finding that the City was not substantially prejudiced by the 11-month delay in serving a notice of claim … . Matter of Ramos v Board of Educ. of the City of New York, 2017 NY Slip Op 01868, 2nd Dept 3-15-17
EDUCATION-SCHOOL LAW (PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)/NEGLIGENCE (EDUCATION-SCHOOL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)