Opinion
2002-06274
Submitted November 4, 2002.
December 2, 2002.
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the appeal is from an order of the Supreme Court, Westchester County (LaCava, J.), dated June 5, 2002, which granted the petition.
William M. Mooney, Corporation Counsel, Yonkers, N.Y. (Michael Levinson of counsel), for appellant.
Vogel Rosenberg, New York, N.Y. (Stuart DiMartini of counsel), for respondents.
Before: SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, CORNELIUS J. O'BRIEN, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is reversed, as a matter of discretion, with costs, the petition is denied, and the proceeding is dismissed.
On October 19, 2001, the petitioner Erika Price, then a student at P.S. 25 in Yonkers, was injured during recess when she allegedly tripped and fell over another student. Approximately 5 1/2 months after the accident, the petitioners commenced the instant proceeding for leave to serve a late notice of claim on the appellant, Board of Education of the City of Yonkers.
We agree with the appellant that the Supreme Court improvidently exercised its discretion in granting the petitioners leave to serve a late notice of claim. The petitioners failed to offer any excuse for the 5 1/2 month delay in seeking leave to serve a late notice of claim (see Matter of Bergmann v. County of Nassau, 297 A.D.2d 807; Mack v. City of New York, 265 A.D.2d 308).
Furthermore, there is no evidence that the appellant acquired actual knowledge of the facts constituting the negligent supervision claim within 90 days or a reasonable time thereafter so as to obviate prejudice to it. While the appellant's school principal came to the scene of the accident and filled out a report of the accident, the form only indicated that Erika Price was injured as she was running from a child and tripped over another child. This form cannot fairly be said to have apprised the appellant of the claim that the appellant negligently failed to supervise the students (see Matter of Ryder v. Garden City School District, 277 A.D.2d 388; Matter of Dunlea v. Mahopac Cent. School Dist., 232 A.D.2d 558; Matter of Baldi v. Mt. Sinai School Dist., 254 A.D.2d 414). Accordingly, the appellant had no reason to conduct a prompt investigation into the purported negligence, and therefore it would be prejudiced if compelled to prepare a defense to the claim at this late date (see Matter of Ryder v. Garden City School Dist., supra). Given these circumstances, the Supreme Court should have denied the petition.
FEUERSTEIN, J.P., SMITH, O'BRIEN and ADAMS, JJ., concur.