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LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED, NO SHOWING SCHOOL WAS AWARE OF POTENTIAL LIABILITY WITHIN 90 DAYS, NO ADEQUATE EXCUSE FOR THE DELAY, NO SHOWING SCHOOL WAS NOT PREJUDICED BY THE DELAY.

The Second Department, reversing Supreme Court, determined leave to file a late notice of claim should not have been granted in this gym-class injury case. There was no showing the school was made aware of its potential liability during the 90 days following the injury. Although a medical claim form was filled out and submitted to the school four days after the incident, the description of the incident did not alert the school to potential liability for the fall from gym equipment:

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Although a medical claim form was prepared and submitted to the School District four days after the accident occurred, it merely indicated that the infant petitioner lacerated his eyebrow and fractured his wrist when he fell after hanging from a pull-up bar during physical education class. Where, as here, “the incident and the injury do not necessarily occur only as the result of fault for which [the School District] may be liable”… , the School District’s “knowledge of the accident and the injury, without more, does not constitute actual knowledge of the essential facts constituting the claim'” … . Rather, “[i]n order to have actual knowledge of the essential facts constituting the claim, [a school district] must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim” … . Contrary to the petitioners’ contention, the medical claim form did not provide the School District with actual knowledge of the essential facts underlying the petitioners’ claims that, inter alia, it was negligent in its ownership, operation, management, maintenance, and control of the area where the accident occurred, that it was negligent in its hiring, training, and supervision of its employees and agents, or that its employees were negligent in supervising the injured petitioner and responding to the accident … .

Furthermore, the petitioners failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the delay in filing the petition … . While the injured petitioner here is an infant, the failure to serve a timely notice of claim and the delay in seeking leave to serve a late notice of claim were not the product of the infant petitioner’s infancy

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Finally, as to the issue of substantial prejudice, the petitioners presented no evidence or plausible argument that their delay in serving a notice of claim did not substantially prejudice the School District in defending on the merits … . The assertion contained in the affirmation of the petitioners’ attorney which was submitted in support of their motion, that the School District was not substantially prejudiced by the delay in serving a notice of claim, was conclusory and, without more, inadequate to satisfy the petitioners’ minimal initial burden with respect to this factor … . Matter of D.M. v Center Moriches Union Free Sch. Dist., 2017 NY Slip Op 05090, 2nd Dept 6-21-17

 

EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED, NO SHOWING SCHOOL WAS AWARE OF POTENTIAL LIABILITY WITHIN 90 DAYS, NO ADEQUATE EXCUSE FOR THE DELAY, NO SHOWING SCHOOL WAS NOT PREJUDICED BY THE DELAY)/NEGLIGENCE (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED, NO SHOWING SCHOOL WAS AWARE OF POTENTIAL LIABILITY WITHIN 90 DAYS, NO ADEQUATE EXCUSE FOR THE DELAY, NO SHOWING SCHOOL WAS NOT PREJUDICED BY THE DELAY)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED, NO SHOWING SCHOOL WAS AWARE OF POTENTIAL LIABILITY WITHIN 90 DAYS, NO ADEQUATE EXCUSE FOR THE DELAY, NO SHOWING SCHOOL WAS NOT PREJUDICED BY THE DELAY)/

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