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LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking leave to file a late notice of claim should have been denied. Although the school was aware of the student’s injury, it was not timely made aware of the negligent supervision claim. The fact that the school did not demonstrate prejudice from the delay was not determinative:

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… [T]he petitioner failed to establish that the School District acquired actual knowledge of the essential facts constituting the claim within 90 days after the child’s accident or a reasonable time thereafter. Although the school nurse prepared a “Notification of Injury” form, which the petitioner signed nearly two months after the accident, this form merely indicated that the child received a laceration and contusion on the outer corner of his left eye when he fell on the steps of the large slide. Thus, the form did not provide the School District with timely, actual knowledge of the essential facts underlying the claims that it was negligent in supervising its students, and in the hiring and training of school personnel … . Therefore, the School District had no reason to conduct a prompt investigation into the purported negligence … .

… [P]etitioner failed to demonstrate a reasonable excuse for her failure to serve a timely notice of claim. The child’s infancy alone, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse … . Moreover, to the extent that the petitioner attributed her delay to the need to determine that the proper entity to sue was the School District, a readily ascertainable fact, such a claim does not constitute a reasonable excuse… .

While the petitioner did satisfy her initial burden of showing a lack of substantial prejudice to the School District as a result of her late notice, and the School District failed to make a “particularized evidentiary showing” of substantial prejudice in response … , the presence or absence of any one factor is not necessarily determinative in deciding whether permission to serve a late notice of claim should be granted… . A balancing of the relevant factors … demonstrates that the Supreme Court improvidently exercised its discretion in granting the petition … . McClancy v Plainedge Union Free Sch. Dist., 2017 NY Slip Op 06651, Second Dept 9-27-17

 

NEGLIGENCE (LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUPERVISION, NEGLIGENT (EDUCATION-SCHOOL LAW, (LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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