In the Matter of Raymond Newcomb et al., Appellants,v.Middle Country Central School District, Respondent.BriefN.Y.November 15, 2016BRIEF OF RESPONDENT-RESPONDENT Petitioners-Appellants, In re the Matter of the Claim of RAYMOND NEWCOMB, Individually, and as Father and Natural Guardian of AUSTIN NEWCOMB, against CONGDON, FLAHERTY, O’CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER Attorneys for Respondent-Respondent Middle Country Central School District 333 Earle Ovington Boulevard, Suite 502 Uniondale, New York 11553 Tel.: (516) 542-5900 Fax: (516) 542-5912 APL-2015-00246 Suffolk County Clerk’s Index No. 31807/13 Appellate Division, Second Department Docket No. 2014-05995 FRANKLIN COURT PRESS, INC. 212-594-7902 (36-16B) Reproduced on Recycled Paper Respondent-Respondent. MIDDLE COUNTRY CENTRAL SCHOOL DISTRICT, To be argued by: CHRISTINE GASSER Time requested: 30 minutes Court of Appeals STATE OF NEW YORK Dated: February 26, 2016 TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................................................................... i PRELIMINARY STATEMENT ............................................................................... 1 QUESTIONS PRESENTED ..................................................................................... 4 COUNTER-STATEMENT OF FACTS ................................................................... 6 A. The Accident ....................................................................................... 6 B. The Procedural History ....................................................................... 6 C. Petitioner's Application to Serve a Late Notice of Claim ................................................................................... 7 D. The District's Opposition to the Application .................................... 10 E. Petitioner's Reply .............................................................................. 12 F. The Order of Supreme Court, Suffolk County, Dated May 13, 2014 .......................................................................... 13 G. The Order of the Appellate Division, Second Department, Dated May 6, 2015 ....................................................... 14 H. The Order of the Court of Appeals, Dated September 17, 2015 ........................................................................... 14 POINT I THE DENIAL OF PETITIONER'S APPLICATION WAS CONSISTENT WITH THE SOUND PUBLIC POLICY UNDERLYING GENERAL MUNICIPAL LAW §50-e ............................................................................ 15 POINT II THE SECOND DEPARTMENT PROPERLY EXERCISED ITS DISCRETION IN DENYING THE LATE NOTICE OF CLAIM APPLICATION WHERE THE DISTRICT DID NOT HA VE TIMELY ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS CONSTITUTING THE CLAIM ................................................................... 20 POINT III A. Where There was No Evidence of any Connection Between the Sign and the Motor Vehicle Accident, the District Did Not Have Actual Knowledge of the Essential Facts of the Subject Claim ................................................................................. 20 B. The District's Alleged Placement of the Sign Did Not Provide Actual Knowledge of the Essential Facts of the Subject Claim ............................................................. 36 C. The District's Alleged Removal of the Sign Did Not Provide Actual Knowledge of the Essential Facts of the Subject Claim ............................................................. 45 D. Petitioner's Report of the Accident to the District Did Not Provide Actual Knowledge of the Essential Facts of the Subject Claim ............................................................. 49 E. Petitioner's Reliance on Amabile v. City of Buffalo is Misplaced ................................................................................... 55 THE SECOND DEPARTMENT PROPERLY EXERCISED ITS DISCRETION IN DENYING THE LATE NOTICE OF CLAIM APPLICATION WHERE PETITIONER'S CLAIM WAS PATENTLY MERITLESS ................................................................................................. 59 POINT IV THE SECOND DEPARTMENT PROPERLY EXERCISED ITS DISCRETION IN DENYING THE LATE NOTICE OF CLAIM APPLICATION WHERE PETITIONER DID NOT ESTABLISH THE LACK OF SUBSTANTIAL PREJUDICE TO THE DISTRICT ................................... 64 A. Actual Knowledge of Essential Facts is Intrinsically Linked to Prejudice ................................................... 64 B. It was Petitioner's Burden to Establish the Lack of Prejudice ..................................................................... 67 C. The Presence or Absence of Prejudice is Not Determinative of a Late Notice of Claim Application .................. 69 D. Prejudice in Maintaining a Defense is Inferred Where There is No Actual Knowledge of the Facts of the Claim ............ 70 E. Petitioner's Delay was Sufficient to Support Finding of Prejudice ...................................................................... 72 F. The Availability of Police Photos Does Not Eliminate Prejudice ........................................................................ 73 G. Petitioner's Reliance on Cases that are Factually Distinguishable is Misplaced ......................................................... 76 POINT V THE SECOND DEPARTMENT PROPERLY EXERCISED ITS DISCRETION IN DENYING THE LATE NOTICE OF CLAIM APPLICATION NOTWITHSTANDING PETITIONER'S ARGUMENTS AS TO REASONABLE EXCUSE ..................................... 78 A. Petioner's Discovery Rule Argument Should Be Rejected ....................................................................... 82 B. Petioner's Argument Based on C.P.L.R. §208 Should Be Rejected .............................................................. 86 CONCLUSION ....................................................................................................... 89 TABLE OF AUTHORITIES CASES PAGE Abramovitz v. City, 99 A.D.3d 1000 (2d Dep't 2012) ............................................................................ 73 Adkins v. City of New York, 43 N.Y.2d 346 (1977) ....................................................................................... 16,88 Alston v. State, 97 N.Y.2d 159 (2001) ............................................................................................. 15 Amabile v. City of Buffalo, 93 N.Y.2d 471 (I 999) ........................................................................................ 55-58 Andrew T.B. v. Brewster C.S.D., 18 A.D.3d 745 (2d Dep't 2005) ............................................................................... 77 Ansong v. City of New York, 308 A.D.2d 333 (Ist Dep't 2003) ............................................................................ 43 Apgar v. Waverly C.S.D., 36 A.D.3d 1113 (3d Dep't 2007) ............................................................................. 76 Ayala v. City of New York, 189 A.D.2d 632 (Ist Dep't 1993) ............................................................................ 41 Bacon v. Arden, 244 A.D.2d 940 (4th Dep't 1997) ............................................................................ 55 Bakioglu v. Tornabene, 117 A.D.3d 658 (2d Dep't 2014) ............................................................................. 35 Basualdo v. Guzman, 110 A.D.3d 610 (Ist Dep't 2013) ............................................................................ 33 Beary v. City of Rye, 44 N.Y.2d 398 (1978) ........................................................................................ 17-18 Bell v. City of New York, 100 A.D.3d 990 (2d Dep't 2012) ............................................................................ 73 Bender v. New York City Health & Hospitals Corp., 38 N.Y.2d 662 (1976) ............................................................................................. 48 Bermudez v. State, 44 Misc.2d 605 (2014) ............................................................................................ 15 Bhargava v. City of New York, 130 A.D.3d 819 (2d Dep't 2015) ............................................................................. 27 Bird v. Port Byron C.S.D., 231 A.D.2d 916 (4th Dep't 1996) ............................................................................ 53 Borrero v. New York City Housing Auth., 134 A.D.3d 1104 (2d Dep't 2015) ........................................................................... 27 Bovich v. East Meadow Public Library, 16 A.D.3d 11 (2d Dep't 2005) ................................................................................. 53 Bramble v. New York City Dep't ofEduc., 125 A.D.3d 856 (2d Dep't 2015) ............................................................................. 28 Breco Environmental Contractors, Inc. v. Town of Smithtown, 31 A.D.3d 357 (2d Dep't 2006) ............................................................................... 15 Brown v. City of Buffalo, 100 A.D.3d 1439 (4th Dep't 2012) .............................................................. 29,34,65 Bullard v. City of New York, 118 A.D.2d447 (1st Dep't 1986) ................................................................ 31,69,82 Cacucciolo v. City of New York, 127 Misc.2d 513 (Civil Court of the City of New York 1985) .............................. 86 Campbell v. City of New York, 4 N.Y.3d 200 (2005) ............................................................................................... 16 11 Candino v. Starpoint C.S.D., 115 A.D.3d 1170 (4th Dep't 2014), aff'd, 24 N.Y.3d 925 (2014) .......................... 29 Caridi v. New York Convention Center, 47 A.D.3d 526 (1st Dep't 2008) .............................................................................. 75 Cassidy v. County of Nassau, 84 A.D.2d 742 (2d Dep't 1981) ............................................................................... 85 Catherine G. v. County of Essex, 3 N.Y.3d 175 (2004) ............................................................................................... 61 Catherine G. v. County of Essex, 307 A.D.2d 446 (3d Dep't 2003) ............................................................................. 61 Chattergoon v. New York City Housing Auth., 161 A.D.2d 141 (1st Dep't 1990), aff'd, 78 N.Y.2d 958 (1991) ........................................................................ 32,65,82 Cicio v. City of New York, 98 A.D.2d 38 (2d Dep't 1983) ................................................................................. 51 Clark v. Roswell Park Cancer Inst. Corp., 92 A.D.3d 1273 (4th Dep't 2012) ............................................................................ 42 Claud v. West Babylon U.F.S.D., 110 A.D.3d 663 (2d Dep't 2013) ............................................................................. 36 Cohen v. Pearl River U.F.S.D., 51 N.Y.2d 256 (1980) ........................................................................................ 86-87 Conger v. Ogdensburg City Sch. Dist., 87 A.D.3d 1253 (3d Dep't 2011) ............................................................................. 30 Corrales v. Middle Country C.S.D., 307 A.D.2d 907,762 N.Y.S.2d 908 (2d Dep't 2003) ............................................. 71 Cuda v. Rotterdam-Mohonasen C.S.D., 285 A.D.2d 806 (3d Dep't 2001) ................................................................................. 22 111 Curiel v. Town of Thurman, 289 A.D.2d 737 (3d Dep't 2001), lv. to app. den., 97 N.Y.2d 611 (2002) ................................................................... 29 Damico v. Onondaga County Water Auth., 36 Misc.2d 158 (Sup. Ct. Onondaga Cty. 1962) ..................................................... 85 DelCarmen v. Brentwood U.F.S.D., 7 A.D.3d 620 (2d Dep't 2004) ................................................................................ 73 Dell'Italia v. Long Island Rail Road Corp., 31 A.D.3d 758 (2d Dep't 2006) ........................................................................ 65, 82 DeMolfetto v. City of New York, 216 A.D.2d 295 (2d Dep't 1995) ....................................................................... 67,79 Demorcy v. City of New York, 137 A.D.2d 650 (2d Dep't 1988) ............................................................................ 39 DeVivo v. Town of Carmel, 68 A.D.3d 991 (2d Dep't 2009) ................................................................... 28,38, 69 DiGeloromo v. Metropolitan Suburban Bus Auth., 116 A.D.2d 691 (2d Dep't 1986) ...................................................................... 15, 69 Distel v. County of Ulster, 107 A.D.2d 994 (3d Dep't 1985) ............................................................................. 86 Doyle v. 800 Inc., 72 A.D.2d 761 (2d Dep't 1979) ............................................................................... 84 Erichson v. City of Poughkeepsie Police Dep't, 66 A.D.3d 820 (2d Dep't 2009) ............................................................................... 43 Fahey v. County of Nassau, III A.D.2d 214 (2d Dep't 1985) ............................................................................. 81 Felice v. Eastport/South Manor C.S.D., 50 A.D.3d 138 (2d Dep't 2008) ................................. 18, 25-26, 65, 68-69, 71, 73, 81 IV Fennell v. City School Dist. of Long Beach, 118 A.D.3d 783 (2d Dep't 2014) ............................................................................. 52 Fleming v. City of New York, 89 A.D.3d 405 (lst Dep't 2011) .............................................................................. 40 Flynn v. City of Long Beach, 94 A.D.2d 713 (2d Dep't 1983) ............................................................................... 82 Folmar v. Lewiston-Porter C.S.D., 85 A.D.3d 1644 (4th Dep't 2011) ....................................................................... 28,66 Ford v. Babylon U.F.S.D., 213 A.D.2d 447 (2d Dep't 1995) ............................................................................ 39 Forrest v. Berlin C.S.D., 29 A.D.3d 1230 (3d Dep't 2006) ............................................................................. 60 Friend v. Town of West Seneca, 71 A.D.3d 1406 (4th Dep't 2010) ............................................................................ 66 Gibbs v. City of New York, 22 A.D.3d 717 (2d Dep't 2005) ............................................................................... 41 Gillum v. County of Nassau, 284 A.D.2d 533 (2d Dep't 2001) ............................................................................. 81 Gofman v. City of New York, 268 A.D.2d 588 (2d Dep't 2000) ............................................................................. 71 Haeg v. County of Suffolk, 30 A.D.3d 519 (2d Dep't 2006) ......................................................................... 67,79 Hamm v. Memorial Hospital, 99 A.D.2d 638 (3d Dep't 1984) ............................................................................... 43 Hampson v. Connetquot C.S.D., 114 A.D.3d 790 (2d Dep't 2014) ............................................................................ 66 v Harrington v. City of New York, 6 A.D.3d 662 (2d Dep't 2004) ................................................................................ 39 Heffelfinger v. Albany Int'l Airport, 43 A.D.3d 537 (3d Dep't 2007) ............................................................. 31,65,70,81 Hess v. West Seneca C.S.D., 15 N.Y.3d 813 (2010) ........................................................................................ 60-61 Hess v. West Seneca C.S.D., 71 A.D.3d 1568 (4th Dep't 2010) ............................................................................ 60 Iacone v. Town of Hempstead, 82 A.D.3d 888 (2d Dep't 2011) ......................................................................... 37,81 Ifejika-Obukwelu v. New York City Dep't ofEduc., 47 A.D.3d 447 (lst Dep't 2008) .............................................................................. 33 In re Thomas v. City of New York, 118 A.D.2d 537 (lst Dep't 2014) ............................................................................ 41 Jablonski v. Jakaitis, 85 A.D.3d 969 (2d Dep't 2011) .............................................................................. 64 Johnston v. Town of Putnam Valley Police Dep't, 167 A.D.2d 612 (3d Dep't 1990) ............................................................................. 31 Jordan v. City of New York, 41 A.D.3d 658 (2d Dep't 2007) ......................................................................... 70,76 Justiniano v. New York City Housing Auth. Police, 191 A.D.2d 252 (lst Dep't 1993) ............................................................................ 44 Katz v. Town of Bedford, 192 A.D.2d 707 (2d Dep't 1993) ............................................................................ 60 Kavanaugh v. Memorial Hospital & Nursing Home, 126 A.D.2d 930 (3d Dep't 1987) ............................................................................. 42 VI Kellman v. Hauppauge U.F.S.D., 120 A.D.3d 634 (2d Dep't 2014) ............................................................................. 76 Kitonyi v. Albany County, 128 A.D.2d 1018 (3d Dep't 1987) ........................................................................... 83 Klein v. City of Yonkers, 53 N.Y.2d 1011 (1981) ........................................................................................... 83 Kolnacki v. State, 8 N.Y.3d 277 (2007) ............................................................................................... 15 Kravitz v. County of Rockland, 112 A.D.2d 352 (2d Dep't 1985), aff'd, 67 N.Y.2d 685 (1986) .................................................................................... 69 Kuterman v. City of New York, 121 A.D.3d 646 (2d Dep't 2014) ............................................................................. 28 Kurz v. N.Y.C.H.H. Corp., 174 A.D.2d 671 (2d Dep't 1991) ............................................................................. 77 Lamprecht v. Eastport-South Manor C.S.D., 129 A.D.3d 1084 (2d Dep't 2015) ........................................................................... 28 LaMay v. County of Oswego, 49 A.D.3d 1351 (4th Dep't 2008) ............................................................................ 43 Leeds v. Port Washington U.F.S.D., 55 A.D.3d 734 (2d Dep't 2008) ............................................................................... 36 LeMieux v. Alden High School, 1 A.D.3d 995 (4th Dep't 2003) ................................................................................ 29 Lingfei Sun v. City of New York, 131 A.D.3d 1015,1016 (2d Dep't 2015) ................................................................ 56 Long v. State, 7 N.Y.3d 269 (2006) ............................................................................................... 15 Vll Lopez v. City of New York, 103 A.D.3d 567(lst Dep't 2013) ............................................................................. 76 Lopez v. County of Nassau, 120 A.D.3d 688 (2d Dep't 2014) ............................................................................. 79 LoTempio v. Erie County Health Dep't, 17 A.D.3d 1161 (4th Dep't 2005) ............................................................................ 60 Lozada v. City of New York, 189 A.D.2d 726 (lst Dep't 1993) ............................................................................ 76 Lucas v. City of New York, 91 A.D.2d 637 (2d Dep't 1982) ............................................................................... 51 Manuel v. Riverhead C.S.D., 116 A.D.3d 1048 (2d Dep't 2014) .................................................................... 66,73 Matter of Battle v. City of New York, 261 A.D.2d 614 (2d Dep't 1999) ........................................................................ 46-47 Matter of Carpenter v. City of New York, 30 A.D.3d 594 (2d Dep't 2006) .............................................................................. 70- Matter of Doyle v. Elwood U.F.S.D., 39 A.D.3d 544 (2d Dep't 2007) ............................................................................... 38 Matter of Holmes v. City of New York, 189 A.D.2d 676 (lstDep't 1993) ............................................................................ 47 Mazzilli v. City of New York, 154 A.D.2d 355 (2d Dep't 1989) ............................................................................ 39 McGinness v. City of New York, 113 A.D.3d 566 (lst Dep't 2014) ...................................................................... 70, 75 McGreevy v. Rensselaer County Sheriff, 152 Misc.2d 127 (Sup. Ct. Rensselaer Cty. 1991) .................................................. 85 Vlll Medley v. Cichon, 305 A.D.2d 643 (2d Dep't 2003) ............................................................................. 77 Mehra v. City of New York, 112 A.D.3d 417 (1st Dep't 2013) ............................................................................ 33 Methal v. City of New York, 116 A.D.3d 743 (2d Dep't 2014) ............................................................................. 57 Mitchell v. City of New York, 77 A.D.3d 754 (2d Dep't 2010) ......................................................................... 37-38 Mitchell v. Town of Greenburgh, 96 A.D.3d 852 (2d Dep't 2012) .............................................................................. 68 Mondaca v. County of Westchester, 195 A.D.2d 511 (2dDep't 1993) ............................................................................ 21 Monge v. City of New York Dep't of Social Services, 95 A.D.2d 848 (2d Dep't 1983) ............................................................................... 77 Morano v. County of Dutchess, 160 A.D.2d 690 (2d Dep't 1990) ............................................................................. 81 Morris v. City of New York, 132 A.D.3d 997 (2d Dep't 2015) ............................................................................. 27 Morris v. County of Suffolk, 88 A.D.2d 956 (2d Dep't), ajJ'd, 58 N.Y.2d 767 (1982) .................................................................................... 70 Mounsey v. City of New York, 68 A.D.3d 998 (2d Dep't 2009) .......................................................................... 75-76 Murray v. City of New York, 30 N.Y.2d 113 (1972) ............................................................................................. 19 Murray v. Village ofMalveme, 118 A.D.3d 798 (2d Dep't 2014) ............................................................................ 66 IX N.M. v. Westchester County Health Care Corp., 10 A.D.3d 421 (2d Dep't 2004) ............................................................................... 83 Nunez v. City of New York, 307 A.D.2d 218 (l st Dep't 2003) ...................................................................... 43, 81 Oboler v. City of New York, 8 N.Y.3d 888, 889 (2007) ....................................................................................... 57 Pahler v. Daggett, 170 A.D.2d 750 (3d Dep't 1991) ............................................................................. 63 Palmer v. Society for Seamen's Children, 88 A.D.3d 970 (2d Dep't 2011) .............................................................................. 66 Peralta v. Manzo, 74 A.D.3d 1307 (2d Dep't 2010) ............................................................................ 64 Perry v. City of New York, 133 A.D.2d 692 (2d Dep't 1987) ............................................................................. 49 Picciano v. Nassau County Civil Service Comm'n, 290 A.D.2d 164 (2d Dep't 2001) ............................................................................. 44 Pierson v. City of New York, 56 N.Y.2d 950 (1982) ............................................................................................. 83 Pineda v. City of New York, 305 A.D.2d 294 (lst Dep't 2003) ............................................................................ 33 Polanco v. New York City Housing Auth., 39 A.D.3d 320 (lst Dep't 2007) ........................................................................ 70, 75 Price v. Bd. ofEduc. of City of Yonkers, 300 A.D.2d 310 (2d Dep't 2002) ............................................................................ 73 Prude v. County of Erie, 47 A.D.2d III (4th Dep't 1975) .............................................................................. 77 x Quinn v. Wallkill C.S.D., 131 A.D.3d 1063 (2d Dep't 2015) ........................................................................... 77 Randolph v. Westchester Medical Center, 122 A.D.3d 822 (2d Dep't 2014) ...................................................................... 68, 72 Rechenberger v. Nassau County Medical Center, 112 A.D.2d 150 (2d Dep't 1985) ....................................................................... 42, 77 Ribeiro v. Town of North Hempstead, 200 A.D.2d 730 (2d Dep't 1994) ............................................................................. 45 Riordan v. East Rochester Schools, 291 A.D.2d 922 (4th Dep't 2002) ............................................................................ 22 Rivera v. City of New York, 169 A.D.2d 387 (l st Dep't 1991) ................................................................. 47-49, 76 Rivera v. City of New York, 127 A.D.3d 445 (lst Dep't 2015) ............................................................................ 76 Roberts v. County of Rensselaer, 16 A.D.3d 829 (3d Dep't 2005) .............................................................................. 70 Rojas v. N.Y.C.H.H. Corp., 127 A.D.3d 870 (2d Dep't 2015) ........................................................................ 76-77 Romeo v. Long Island Power Auth., 133 A.D.3d 667 (2d Dep't 2015) ............................................................................. 27 Rosario v. N.Y.C.H.H. Corp., 119 A.D.3d 490 (1st Dep't 2014) ............................................................................ 76 Ryder v. Garden City Sch. Dist., 277 A.D.2d 388 (2d Dep't 2000) ............................................................................ 72 Saafir v. Metro North Commuter Railroad Co., 260 A.D.2d 462 (2d Dep't 1999) ............................................................................ 37 Xl Sandak v. Tuxedo Union School District No.3, 308 N.Y. 226 (1954) ......................................................................................... 16,18 Savelli v. City of New York, 122 A.D.2d 55 (2d Dep't 1986) ............................................................................... 80 Savelli v. City of New York, 104 A.D.2d 943 (2d Dep't 1984) ............................................................................. 80 Schwindt v. County of Essex, 60 A.D.3d 1248 (3d Dep't 2009) ............................................................................. 76 Scolo v. Central Islip U.F.S.D., 40 A.D.3d 1104 (2d Dep't 2007) ............................................................................ 72 Sexstone v. City of Rochester, 32 A.D.2d 737 (4th Dep't 1969) .............................................................................. 84 Sheehan v. City of New York, 40 N.Y.2d 496 (1976) ............................................................................................. 63 Somma v. City of New York, 81 A.D.2d 889 (2d Dep't 1981) ............................................................................... 51 Sosa v. City of New York, 124 A.D.3d 515 (lst Dep't 2015) ...................................................................... 52, 75 Spano v. Kings Park C.S.D., 61 A.D.3d 666 (2d Dep't 2009) ............................................................................... 15 Sparrow v. Hewlett-Woodmere U.F.S.D., 110 A.D.3d 905 (2d Dep't 2013) ............................................................................. 38 St. Paul Guardian Ins. Corp. v. Pocatello Fire Dist., 90 A.D.3d 761 (2d Dep't 2011) ............................................................................... 35 Stark v. West Hempstead U.F.S.D., 127 A.D.3d 765 (2d Dep't 2015) ............................................................................. 72 XlI Stiffv. City of New York, 114 A.D.3d 843 (2d Dep't 2014) ............................................................................ 66 Swain v. County of Albany, 268 A.D.2d 747 (3d Dep't 2000) ............................................................................ 60 Termini v. Valley Stream U.F.S.D., 2 A.D.3d 866 (2d Dep't 2003) ................................................................................ 73 Thill v. North Shore C.S.D., 128 A.D.3d 976 (2d Dep't), Iv. to app. den., 26 N.Y.3d 914 (2015) ....................................................... 26,34, 72 Thomann v. The City of Rochester, 256 N.Y. 165 (1931) ............................................................................................... 24 Tiburcio v. New York City Trans. Auth., 270 A.D.2d 110 (1 st Dep't 2000) ............................................................................ 39 Underwood v. New York City Housing Auth., 1 77 A.D .2d 698 (2d Dep't 1991) ............................................................................. 66 Urban v. Waterford-Halfmoon U.F.S.D., 105 A.D.2d 1022 (3d Dep't 1984) ........................................................................... 54 Valila v. Town of Hempstead, 107 A.D.3d 813 (2d Dep't 2013) ............................................................................ 68 Vargas v. New York City Housing Auth., 232 A.D.2d 263 (1 st Dep't 1996), Iv. to app. den., 89 N.Y.2d 817 (1997) ................................................................... 71 Vasquez v. City of Newburgh, 35 A.D.3d 621 (2d Dep't 2006) ............................................................................... 35 Vazquez v. Roldan, 86 A.D.3d 640 (2d Dep't 2011) .............................................................................. 63 Velazquez v. City of New York H.H.C., 69 A.D.3d 441 (1st Dep't 2010) .............................................................................. 33 Xlll Wade v. New York City Health & Hospitals Corp., 85 A.D.3d 1016 (2d Dep't 2011) ............................................................................ 20 Wai Man Hui v. Town of Oyster Bay, 267 A.D.2d 233 (2d Dep't 1999), Iv. to app. den., 94 N.Y.2d 764 (2000) ................................................................... 71 Webb v. New York City Housing Auth., 35 A.D.3d 313 (1st Dep't 2006) .............................................................................. 32 Weiss v. Fote, 7 N.Y.2d 579 (1960) ............................................................................................... 15 Welch v. Board ofEduc. of Saratoga C.S.D., 287 A.D.2d 761 (3d Dep't 2001) ............................................................................. 77 White v. New York City Housing Auth., 288 A.D.2d 150 (1st Dep't 2001) ............................................................................ 40 Whitehead v. Centerville Fire District, 90 A.D.2d 655 (3d Dep't 1982) ............................................................................... 42 Williams v. City of New York, 290 A.D.2d 354 (1 ST Dep't 2002) ........................................................................... 60 Williams v. Nassau County Medical Center, 6 N.Y.3d 531 (2006) .................................................. 19-20, 22-24, 33-34, 64-65, 68 Williams v. Nassau County Medical Ctr., 13 A.D.3d 363 (2d Dep't 2004) ......................................................................... 22,68 Wilson v. City of Binghamton, 248 A.D.2d 780 (3d Dep't 1998) ............................................................................. 30 Zarrello v. City of New York, 61 N.Y.2d 628 (1983) ............................................................................................. 65 Zimmet v. Huntington U.F.S.D., 187 A.D.2d 436 (2d Dep't 1992) ............................................................................. 53 XIV STATUTES C.P.L.R. §208 ..................................................................................................... 86-88 General Municipal Law §50-e (1) (a) ......................................................... 16,20,83 General Municipal Law §50-e (2) ........................................................................... 26 General Municipal Law §50-e (4) ........................................................................... 58 General Municipal Law §50-e (5) ......................................................... 17, 19,21, 88 General Municipal Law §50-e (6) ........................................................................... 40 General Municipal Law §50-i (1) .......................................................................... 83 xv PRELIMINARY STATEMENT This personal injury action arises from a motor vehicle accident that occurred when the infant petitioner-appellant Austin Newcomb was struck by a vehicle while crossing a public street on a Saturday evening. The accident did not involve a Middle Country School District vehicle, and did not occur on the grounds of a District school. Petitioner alleges that a sign advertising a school play placed near the intersection where the accident occurred contributed to the accident by obstructing the views of the petitioner pedestrian and the driver of the vehicle. The respondent-respondent Middle Country Central School District ("District") submits this brief in response to petitioner-appellant's appeal from a the Decision and Order of the Appellate Division, Second Department, dated May 6, 2015, which affirmed the Order denying petitioner's application for leave to deem a late notice of claim timely served. On his late notice of claim application, petitioner argued that he was entitled to the relief requested based upon the factors found in General Municipal Law §50- e (5). In opposition, it was argued that petitioner did not demonstrate that the District had actual knowledge of the essential facts of the claim. This was because the mere fact that District employees at one of its schools may have been aware that the sign had been placed near the intersection did not provide any notice that it would be alleged that there was a connection between the sign and an automobile - 1 - accident involving a student from another school so as to give rise to liability on the District's part. It was argued that, absent evidence of such actual knowledge, petitioner had not demonstrated the lack of prejudice to the District. Further, the evidence submitted, including photographs and the police accident report, demonstrated that the sign did not obstruct the view of either the petitioner pedestrian or the driver of the vehicle. Therefore, the District also argued that the application should be denied as the claim is patently meritless. The Supreme Court, Suffolk County, found that the District did not receive actual knowledge of the essential facts constituting the claim. The District's awareness of the sign or possible participation in its placement did not amount to knowledge that the sign contributed to the happening of the subject accident off school property during non-school hours. Because of the District's lack of actual knowledge, the motion court found that petitioner's eight month delay in making the application created prejudice as to the District's ability to investigate the merits of the claim when such information was likely to be available. As a result, petitioner's application was denied. On petitioner's appeal, the Appellate Division, Second Department, unanimously affirmed the Order which had denied petitioner's application. Noting the most important factor to be whether the public corporation "acquired actual notice of the essential facts constituting the claim within 90 days after the accrual - 2 - of the claim or within a reasonable time thereafter," it held that petitioner had failed to establish that the District received such notice (85). Specifically, petitioner failed to establish that the District became aware that the sign "was connected with the happening of the accident in such a way that would give rise to liability on the part of the School District" (85). The Second Department also found that petitioner failed to establish the lack of substantial prejudice to the District's ability to defend itself (85). As a result, the Order denying the late notice of claim application was affirmed (84). On petitioner's motion pursuant to C.P.L.R. §5602 (a) (1), this Court granted leave to appeal by Order dated September 17, 2015 (83). The issue on this appeal is whether the Second Department properly exercised its discretion in affirming the denial of petitioner's late notice of claim application under General Municipal Law §50-e (5) where there is no evidence the District had actual knowledge of any facts that connected the sign to the happening of the accident in a way that would suggest liability on the part of the District. Actual knowledge of the essential facts is the factor to be given the most weight on a late notice of claim application because it furthers the legitimate purpose of General Municipal Law §50-e, which is to protect against stale claims, and to afford the municipal entity the opportunity to evaluate the merits of the claim while the facts surrounding it are still fresh. Therefore, the Second Department properly - 3 - exercised its discretion in assigning great weight to the lack of actual knowledge and, in denying petitioner's application to deem the notice of claim timely served. The Order of the Appellate Division, Second Department, dated May 6, 2015, should be affirmed. QUESTIONS PRESENTED 1. Where the respondent school district did not have actual knowledge of the essential facts constituting the claim that the placement of a sign advertising a school play near an intersection was causally connected to a motor vehicle accident near that intersection, did the court properly exercise its discretion in denying petitioner's late notice of claim application? The Second Department exercised its discretion and denied petitioner's application, properly finding that petitioner did not prove that the District had the requisite actual knowledge that the sign was causally connected to the motor vehicle accident. 2. Where the respondent school district did not have actual knowledge of the essential facts constituting the claim that the placement of a sign advertising a school play near an intersection was causally connected to a motor vehicle accident near that intersection, did the court properly find that petitioner failed to demonstrate that the delay in serving a notice of claim would not substantially prejudice the school district? - 4 - The Second Department exercised its discretion and denied petitioner's application, properly finding that petitioner offered no proof of the lack of substantial prejudice to the District. 3. Where the claim is patently meritless because photographic evidence and a police accident report negates the contention that the placement of the sign obstructed the view of either the petitioner pedestrian or the oncoming driver, did the court properly exercise its discretion in denying petitioner's late notice of claim application? While the Second Department did not address the merit of petitioner's claim, it nonetheless properly exercised its discretion in denying petitioner's application. 4. Where the respondent school district did not have actual knowledge of the essential facts constituting the claim, did the court properly deny petitioner's application notwithstanding petitioner's assertions that there was reasonable excuse for the delay in serving a notice of claim? The Second Department did not address petitioner's reasonable excuse arguments, but acted within its discretion in denying the application notwithstanding the reasonableness of petitioner's excuse for the delay. - 5 - COUNTER-STATEMENT OF FACTS A. The Accident. On March 23, 2013, at approximately 8:30 p.m. on a Saturday evening, infant petitioner Austin Newcomb was struck by a vehicle while crossing Route 25 at the intersection of Marshall Drive, in Selden, New York (19, 55)1 He was crossing Route 25 in a southbound direction, and was struck by a vehicle traveling westbound on Route 25 (67). B. The Procedural History. In December 2013, more than eight months after the subject accident, petitioner-appellant Raymond Newcomb (the "petitioner") made an application by order to show cause for leave to serve a late notice of claim (10). Respondent- respondent Middle Country Central School District (the "District") opposed that application (59). By Order dated May 13, 2014, the Honorable Andrew G. Tarantino, Jr., of Supreme Court, Suffolk County, denied petitioner's application for leave to deem a late notice of claim timely served (4-8). The Second Department affirmed that order on'petitioner's appeal (84). Petitioner's application for leave to appeal was then granted by this Court (83). Numbers in parentheses denote references to the Record on Appeal. - 6 - C. Petitioner's Application to Serve a Late Notice of Claim. Petitioner Raymond Newcomb, the father of Austin Newcomb, did not serve a timely notice of claim on the District, but instead petitioned for permission to serve a late notice of claim against the District by Order to Show Cause filed December 3, 2013 (10-18). This was over eight months after the subject accident, and more than five months after the expiration of the ninety-day statutory period. Petitioner's application was supported by his affidavit, his attorney's affidavit, various exhibits and the proposed notice of claim. The proposed notice of claim alleges that the District was negligent in placing a sign advertising a school play near the northwest comer of Route 25 and Marshall Drive (19). The sign advertised a production of "The Music Man" at Newfield High School, which is a school within the District (15). The sign was allegedly placed in such a manner as to obstruct the view of pedestrians on the comer and to distract and obstruct the view of drivers (19). It is alleged that the placement of the sign created a hazardous condition (20). The proposed notice of claim did not assert any violation of statutes or codes (19-20). At the time of accident petitioner's son was a student at Centereach High School, also a school within the District (56). The petitioner father states that, after the accident, he notified unnamed officials at Centereach High School that his son - 7 - had been seriously injured in an accident at the intersection of Route 25 and Marshall Drive (56). It is claimed that petitioner first learned of the presence of the sign near the intersection on September 20, 2013, and was only able to identify the contents of the sign on November 5, 2013 (15-16). This was allegedly due to the criminal prosecution of the driver and owner of the vehicle that struck petitioner's son (15). Petitioner annexed the Police Accident Report to the application and to the proposed notice of claim (23, 53). The report indicates that the pedestrian was southbound crossing Route 25 at Marshall Drive when struck by a westbound vehicle (53). The diagram shows that the pedestrian was struck on Route 25 by the Dunkin' Donuts on the comer (53). Petitioner concedes that there was no mention of the subject sign in the Police Accident Report (36). Petitioner also annexed several photographs of the accident site to the proposed notice of claim (25-29). The Dunkin' Donuts can be seen in three of the photos (25, 26, 28). Four of these photographs show the sign for "The Music Man" on the right, behind the crosswalk on the side street alongside Dunkin' Donuts (26-29). These photos provide a view looking west, the direction of travel of the vehicle that struck petitioner's son. The sign is set back from comer, and the entire comer and width of the sidewalk to the curb can be seen from the perspective of an approaching westbound vehicle. Yellow tape suspended between - 8 - two poles provides additional perspective on how far back the sign was placed (27, 29). In support of the application, petitioner argued that the District had actual knowledge of the facts and circumstances relating to the claim within ninety days of the accident because the student's accident was reported to officials at Centereach High School (14, 40). There was no claim that the accident was reported to officials at Newfield High School where the play was performed. Petitioner also argued that the District had access to the sign for the Newfield High School production up until and after the date of the accident (16, 38). The actual knowledge claim was also based upon the District's purported removal of the sign at some point after the subject accident (39). However, petitioner submitted no evidence and made no argument that the District had actual knowledge of any connection between the presence of the sign and his son being struck by the car. Petitioner further argued that he had a reasonable excuse for the delay in serving a notice of claim, including his son's infancy and severe injuries, and the delay by the police in providing accident site photographs (41-42). It was also asserted that the District would not be prejudiced by the delay because it purportedly was in the best position to know about the sign (42-43). - 9 - D. The District's Opposition to the Application. The District opposed the application arguing that it did not have actual knowledge of the essential facts constituting the claim. It argued that, while officials at Centereach High School learned that one of its students had been injured in a car accident off school property on a Saturday night, such information did not apprise the District of the claim that the accident was attributable to negligence on its part (63). Significantly, the sign placed near the intersection advertised a theatrical production at a different school, Newfield High School. Therefore, the fact that employees at Newfield High School may have been aware that the sign had been placed on the street did not provide any notice that it would be alleged that there was a connection between the sign and an automobile accident involving a student from Centereach High School. Further, the District argued that the claim was patently meritless (65-66). This is because the sign, located north of the intersection, off the sidewalk along Route 25, and set back from the comer, could not have obstructed the view of either the pedestrian crossing Route 25 in a southbound direction or the vehicle traveling westbound on Route 25 (65). The District submitted two police photographs taken after the accident (68- 69). These photos, as well as those submitted by petitioner, show that any pedestrian crossing Route 25 at the subject intersection would necessarily have - 10 - been well in front of the sign as he crossed the sidewalk before entering the roadway (25-29, 68-69). The photographs on pages 26 - 29, 68 and 69 of the record show the intersection from the vantage point of a westbound vehicle. The Police Accident Report indicates that the accident occurred on Route 25 - which means that petitioner's son would have been on the sidewalk, well to the left of the sign as seen in the photographs, and then ultimately on the roadway, again well to the left of the sign, when he was struck by the vehicle. The photographs also show that as a westbound vehicle on Route 25 approached the intersection, it would have had an unobstructed view of any pedestrian about to enter the roadway as that pedestrian would have to be on the sidewalk well in front of the sign before doing so (65). These photographs, especially that on page 29, also show how far petitioner would have been from the sign when he was on the sidewalk immediately before starting across Route 25, demonstrating that the sign also would not have blocked his view of an approaching car as he began to cross. The District noted that the Police Accident Report does not note any apparent contributing factors in boxes 19 - 22 (23, 66-67). Boxes 19 - 22 provide responses for environmental factors such as "view obstructed/limited" and "other environmental" as possible responses. However, despite filling in other codes on the Report, the responding officer did not indicate anywhere in the report that the - 11 - sign was a contributing factor to the accident (23, 67). As a result, the District argued that leave to serve a late notice of claim should not be granted because the claim is patently meritless (65). Finally, the District also argued that petitioner had failed to demonstrate that the District would not be substantially prejudiced by the delay in filing the notice of claim as is the petitioner's burden (63-65). Because it had no knowledge whatsoever that the accident was in any way attributable to negligence on its part, the District was prevented from performing a timely investigation of the incident while the details as to the placement of the sign were still fresh (63-64). E. Petitioner's Reply. In reply, petitioner reiterated a number of the arguments previously made. However, petitioner argued for the first time that actual knowledge of the facts may be imputed to the District since its employees engaged in the conduct giving rise to the claim (73). It should be noted that neither petitioner's proposed notice of claim nor any of the papers submitted in support of the application allege that the District violated the Town of Brookhaven Code. - 12 - F. The Order of Supreme Court, Suffolk County, Dated May 13,2014. By Order dated May 13, 2014, the Honorable Andrew G. Tarantino, Jr. denied petitioner's application for leave to deem a late notice of claim timely served (4-8). Noting that the most important factor to be considered is whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of the accrual of the claim, the motion court found that the District did not receive such notice (6). The District's awareness or possible participation in the placement of the sign "does not mean that the school district knew that the petitioner would claim that the subject sign contributed to the happening of this tragic accident at a major intersection some distance from the school during non- school hours" (7). Because of the District's lack of actual knowledge, the motion court found that the five month delay created prejudice as to the District's ability to investigate the merits of the claim when such information was likely to be available (7). As the court noted, prejudice in maintaining a defense is inferred since the "mere passage of time creates prejudice with respect to fading memories of witnesses" (7). Petitioner appealed to the Second Department from this order. - 13 - G. The Order of the Appellate Division, Second Department, Dated May 6, 2015. By ordered dated May 6, 2015, the Second Department affirmed the denial of leave to serve a late notice of claim (84-85). Noting the most important factor to be whether the public corporation "acquired actual notice of the essential facts constituting the claim within 90 days after the accrual of the claim or within a reasonable time thereafter," the Second Department held that petitioner had failed to establish that the District received such notice (85). While petitioner alleged that the placement of the sign was a proximate cause of the motor vehicle accident, they failed to establish that the District became aware that the sign "was connected with the happening of the accident in such a way that would give rise to liability on the part of the School District" (85). The Second Department also found that petitioner failed to establish the lack of substantial prejudice to the District's ability to defend itself (85). As a result, the order denying the late notice of claim application was affirmed (84). H. The Order of the Court of Appeals, Dated September 17,2015. Petitioner moved for leave to appeal to this Court pursuant to C.P.L.R. §5602 (a) (1). This Court granted petitioner's motion by Order dated September 17,2015 (83). - 14 - POINT I THE DENIAL OF PETITIONER'S APPLICATION WAS CONSISTENT WITH THE SOUND PUBLIC POLICY UNDERLYING GENERAL MUNICIPAL LAW §50-e. Municipal entities were traditionally protected against suit by the doctrine of sovereign immunity, which rendered them immune from suit absent their consent. See Alston v. State, 97 N.Y.2d 159, 161 (2001); Weiss v. Fote, 7 N.Y.2d 579,583- 584 (1960). Where the State has waived sovereign immunity, that waiver is conditioned on compliance with certain requirements, see Alston, 97 N.Y.2d at 162-63, which includes notice of claim laws. See DiGeloromo v. Metropolitan Suburban Bus Auth., 116 A.D.2d 691 (2d Dep't 1986). The State's waiver of sovereign immunity extends to its subdivisions. See Breco Environmental Contractors, Inc. v. Town of Smithtown, 31 A.D.3d 357 (2d Dep't 2006), and a school district is a political subdivision of the State. Spano v. Kings Park C.S.D., 61 A.D.3d 666, 672 (2d Dep't 2009). Because such suits are allowed only because of the waiver of sovereign immunity, and are in derogation of the common law, "statutory requirements conditioning suit must be strictly construed." Kolnacki v. State, 8 N.Y.3d 277 (2007); Long v. State, 7 N.Y.3d 269 (2006); Bermudez v. State, 44 Misc.3d 605 (Ct. Claims 2014). Therefore, where municipal entities have relinquished absolute - 15- sovereign immunity, but have imposed conditions such as requiring a timely notice of claim, such requirements must be strictly construed in favor of the entity. It is beyond question that a notice of claim is a statutory prerequisite and condition precedent to commencing a lawsuit against a public corporation. See General Municipal Law §50-e (1) (a). As a condition precedent to bringing a suit against a municipal entity it is a "substantive limitation on the right to sue." Campbell v. City of New York, 4 N.Y.3d 200 (2005). The notice of claim must be served on the entity within ninety days after a tort claim arises. General Municipal Law §50-e (1) (a). The history of General Municipal Law §50-e indicates that the intent underlying the notice of claim requirement is to protect municipalities from fraudulent and stale claims, and to afford the municipality the opportunity to evaluate the merits of the claim while the facts surrounding it are still fresh. See Adkins v. City of New York, 43 N.Y.2d 346 (1977); Sandak v. Tuxedo Union School District No.3, 308 N.Y. 226 (1954) ("prime, if not sole, objective" of notice statute is to assure "adequate opportunity to investigate the circumstances surrounding the accident ... while information is still readily available"). In reviewing the history of General Municipal Law §50-e, this Court noted that "'[t]he only legitimate purpose served by the notice' is prompt investigation and preservation of evidence of the facts and circumstances out of which claims - 16- arise." Beary v. City of Rye, 44 N.Y.2d 398 (1978) (quoting 21 st Annual Report of N.Y. Judicial Conference, 1976, at 302). The Legislature amended General Municipal Law §50-e in 1976, in part to address the "harsher aspects" of the prior version of the statute. See Beary, 44 N.Y.2d at 411-12. The 1976 amendment addressed the timing of late notice of claim applications under General Municipal Law §50-e (5). However, as the Beary Court stated, it was significant "that the amendment expressly directs that whether the public corporation did or did not have knowledge be accorded great weight." Beary, 44 N.Y.2d at 412. A review of the prior version of General Municipal Law §50-e (5), which the Court attached as an Appendix in Beary, indicates that the language requiring actual knowledge of the essential facts constituting the claim was not part of the statute. See id., at 416. This language requiring that actual knowledge be determined "in particular" was added in 1976. See id., at 416. The addition of this language was "intended to meet legislative concern for assuring reasonably prompt investigative opportunity under the amendment." Id., at 412. Based on the addition of the actual knowledge language to General Municipal Law §50-e (5) in 1976 and subsequent case law, it is beyond dispute that the primary factor to be applied to a late notice of claim application is whether the public corporation had actual knowledge of the essential facts constituting the - 17 - claim. This is because it is such knowledge which serves the prime and legitimate purpose of the notice of claim requirement - timely notice so as to enable prompt investigation while evidence is still available. See Beary, 44 N.Y.2d at 412; Sandak, 308 N.Y. at 232. As will be discussed at length in Point II, the courts have consistently accorded great weight to the actual knowledge requirement. In Felice v. Eastport/South Manor C.S.D., 50 A.D.3d 138 (2d Dep't 2008), the Second Department reviewed the history of General Municipal Law §50-e, noting that the legislative history indicates that the "only legitimate purpose" of notice of claim statutes is to protect against stale claims, and, thus, that courts should be able to consider actual knowledge. Id. at 146 (quoting Bill Jacket, L. 1976, ch. 745 at 107). Significantly, the legislature rejected calls to abolish the notice of claim requirement entirely. See Felice, 50 A.D.3d at 146. Rather, the amendment was passed, including the factor "set apart from all others," specifically requiring that the entity acquire actual knowledge of the essential facts constituting the claim. Id. at 147. As a result, the Felice Court opined that the actual knowledge factor is the most important, "based on its placement in the statute and its relation to other relevant factors." Id. This Court is respectfully urged to analyze the present appeal by applying the great weight assigned to the actual knowledge factor by the Legislature and the - 18 - extensive body of case law to the present facts. It is the application of the actual knowledge factor which best accomplishes the purpose of the notice of claim requirement - the avoidance of stale claims and the opportunity to investigate while information is fresh and still available. The application of the General Municipal Law §50-e (5) factors to the present case was committed to the "sound discretion" of the lower courts. As this Court has noted, "[w]here satisfied that the court has acted within the perimeters of reason, we have consistently affirmed the exercise of discretion whether it has been invoked to sustain or deny grants of permission for late filing." Murray v. City of New York, 30 N.Y.2d 113, 119 (1972); Williams v. Nassau County Medical Ctr., 6 N.Y.3d 531, 539 (2006). Affirmance connotes the refusal to interfere with the lower court's exercise of its discretion, and not necessarily "approval of the discretion thus exercised." Murray, 30 N.Y.2d at 119. This Court is respectfully urged to affirm the Second Department's exercise of its discretion and its denial of petitioner's late notice of claim application. - 19 - POINT II THE SECOND DEPARTMENT PROPERLY EXERCISED ITS DISCRETION IN DENYING THE LATE NOTICE OF CLAIM APPLICATION WHERE THE DISTRICT DID NOT HAVE TIMELY ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS CONSTITUTING THE CLAIM. Petitioner's late notice of claim application failed to demonstrate the District's actual knowledge of any causal connection between the motor vehicle accident and the presence of a sign advertising a school play placed near the comer where the accident occurred. Therefore, the Second Department properly applied General Municipal Law §50-e (5) and exercised its discretion to deny petitioner's application. A. Where There was No Evidence of any Connection Between the Sign and the Motor Vehicle Accident, the District Did Not Have Actual Knowledge of the Essential Facts of the Subject Claim. A notice of claim against a municipal entity must be served within ninety days after the claim arises. General Municipal Law §50-e (l)(a); Williams v. Nassau County Medical Ctr., 6 N.Y.3d 531, 535 (2006). Service of a notice of claim is a "condition precedent" to commencement of an action against a public corporation. General Municipal Law §50-e (l)(a); Wade v. New York City Health & Hospitals Corp., 85 A.D.3d 1016, 1017 (2d Dep't 2011). - 20- Where a claimant fails to serve a timely notice of claim where one is required, an application may be made to the court for permission to serve the notice of claim. Mondaca v. County of Westchester, 195 A.D.2d 511 (2d Dep't 1993). General Municipal Law §50-e (5) permits courts to grant a claimant permission to serve late notices of claim under the following circumstances: In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; ... and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits. General Municipal Law §50-e (5). These factors have been analyzed at great length by the courts of this State, providing an extensive body of case law. The first factor listed in General Municipal Law §50-e (5) is whether the public corporation "acquired actual knowledge of the essential facts constituting the claim." Courts are to consider this factor "in particular." General Municipal - 21 - Law §50-e (5). It is the claimant's burden to demonstrate that the municipality had the requisite knowledge, and not the municipality's burden to demonstrate that it did not have such knowledge. See Riordan v. East Rochester Schools, 291 A.D.2d 922 (4th Dep't 2002); Cuda v. Rotterdam-Mohonasen Central School District, 285 A.D.2d 806 (3d Dep't 2001). This first factor was examined by this Court in Williams v. Nassau County Medical Ctr., 6 N.Y.3d 531 (2006). In Williams, the order granting claimant's motion for leave to serve a late notice of claim had been reversed on appeal. See Williams v. Nassau County Medical Ctr., 13 A.D.3d 363 (2d Dep't 2004). Leave had been sought on behalf of an infant claimant 10 years after his negligence claim arose. It was alleged that the negligence of medical personnel attending claimant's birth resulted in mJury. The Second Department noted that although the defendants "were in possession of the pertinent medical records, that did not establish that they had notice of the specific claim." Williams, 13 A.D.3d at 364. '''The municipality must have notice or knowledge of the specific claim and not general knowledge that a wrong has been committed. '" ld. (citations omitted). This Court affirmed the order of the Second Department, holding that the claimant was not entitled to serve a late notice of claim. Writing for a unanimous Court, Judge Rosenblatt addressed plaintiff's contention that the Second Department's decision required defendants to have actual knowledge of the - 22- "specific claim" or "specific legal theory." Williams, 6 N.Y.3d at 537. While the Williams Court agreed that knowledge of a "specific legal theory" was not required, it did not read the Second Department's decision as "deviating from that principle." ld. Rather, this Court disagreed with plaintiff's contention that, merely because defendants have medical records, "they necessarily have actual knowledge of the facts constituting the claim." ld. The following analysis was provided: Id.537. Merely having created hospital records, without more, does not establish actual knowledge of the potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any Injury on plaintiff during the birth process. The relevant inquiry is whether the hospital had actual knowledge of the facts - as opposed to the legal theory - underlying the claim. Where, as here, there is little to suggest injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying the claim. In essence, the Williams Court found that the defendants did not have knowledge of the facts constituting the claim because defendants' records did not indicate that any acts or omissions of the staff during the delivery caused plaintiff's Injury. This approach confirms that the statutory phrase "acquired actual knowledge of the essential facts constituting the claim" means that the defendant - 23 - had notice of a causal connection between its acts and an injury to the plaintiff. In so holding, this Court construed the Second Department language that defendants had to have "notice of the specific claim" Williams, 13 A.D.3d at 364, to mean notice of that causal connection and not notice of a specific legal theory. Williams, 6 N.Y.3d at 537. This Court's decision in Williams echoes Chief Judge Cardozo in Thomann v. The City of Rochester, 256 N.Y. 165 (1931), a case involving the nuisance caused by a public dump. Discussing the City's notice of claim law, Chief Judge Cardozo wrote that "[ w ] hat satisfies the statute is not knowledge of the wrong ... [w]hat the statute exacts is notice of the 'claim.'" Thomann, 256 N.Y. at 172. As the "Legislature has said that a particular form of notice, conveyed with particular details to particular public officers .. [is] .. a prerequisite to the right to sue ... [t]he courts are without power to substitute something else." Id. In the present case, the motion court properly held that the District did not have actual knowledge because awareness of the accident and plaintiff's injuries "without more" does not constitute notice of the claim (6). Further, assuming the District knew about or participated in the placement of the sign, this did not mean that the District knew there would be a claim "that the subject sign contributed to the happening" of the accident that occurred off campus and outside of school hours (7). - 24- The Second Department affirmed this reasoning, noting that petitioner failed to establish the District's awareness that the placement of the sign "was connected with the happening of the accident in a way that would give rise to liability on the part of the School District" (85). The Second Department's analysis, requiring more than a discrete awareness of the sign and an awareness of an accident, is consistent with this Court's reasoning in Williams. In fact, the Second Department's analysis herein is consistent with numerous cases in the vanous Departments considering the parameters of what constitutes actual knowledge of the essential facts constituting the claim. The Second Department considered this issue at length in Felice v. Eastport/South Manor C.S.D., 50 A.D.3d 138 (2d Dep't 2008), where a high school cheerleader was injured during a team practice. The Second Department reversed the order granting claimant leave to serve a late notice of claim. Writing for a unanimous court, Justice Stephen Crane noted that the first factor, actual knowledge, "is the most important, based on its placement in the statute and its relation to other relevant factors." Id. at 147. "[A] public corporation's knowledge of the accident and the injury, without more, does not constitute 'actual knowledge of the essential facts constituting the claim,' . . . at least where the incident and the injury do not necessarily occur only as the result of fault for which it may be held liable." Id. at 147-48. The public corporation "must - 25 - have knowledge of the facts that underlie the legal theory or theories on which liability is predicated . . . [but not] specific notice of the theory or theories themselves." ld. at 148. As noted in Felice, the actual knowledge requirement is consistent with General Municipal Law §50-e (2) which requires the notice of claim to indicate not only when, where, and the manner in which the claim arose, but also the "nature of the claim." ld. at 149. "Thus, it makes sense to regard the term "essential facts constituting the claim," ... as including those facts that reveal the nature of the claim." ld. In Thill v. North Shore C.S.D., 128 A.D.3d 976 (2d Dep't), Iv. to app. den., 26 N.Y.3d 914 (2015), petitioners' motion for leave to serve a late notice of claim was denied and that order was affirmed. In Thill, a vehicle driven by a nonparty motorist struck the District's employee, who was crossing the street, and then crossed the median and struck petitioners' car. It was petitioners' claim that the employee had negligently crossed against the traffic light during the course of his employment, and this was the basis of their claim against the District. See Thill, Record on Appeal, at 15. The Second Department rejected this argument as that information, "without more," was insufficient to demonstrate actual knowledge of the essential facts constituting the claim. Thill, 128 A.D.3d at 977. "A report which describes the - 26- circumstances of the accident without making a connection between the petitioner's injuries and the negligent conduct on the part of the public corporation will not be sufficient to constitute actual notice of the essential facts constituting the claim." Id. The public corporation must be able to "readily infer" from the report that "a potentially actionable wrong had been committed by the [employee of] the public corporation." Id.; see Borrero v. New York City Housing Auth., 134 A.D.3d 1104 (2d Dep't 2015) (incident report filed with defendant did not provide actual notice of claim that petitioner was injured as result of defendant's negligence); Romeo v. Long Island Power Auth., l33 A.D.3d 667 (2d Dep't 2015) (phrase "facts constituting the claim" generally understood to mean "facts which would demonstrate a connection between the happening of the accident and any negligence on the part of the public corporation"); Morris v. City of New York, 132 A.D.3d 997 (2d Dep't 2015) (police accident report did not provide City with actual notice of claim that claimant was injured because of City's negligence); Quinn v. Wallkill C.S.D., 131 A.D.3d 1063 (2d Dep't 2015) (petitioners did not demonstrate respondent's actual knowledge of essential facts showing "connection between the happening of the incident and any negligence" on respondent's part); Bhargava v. City of New York, 130 A.D.3d 819 (2d Dep't 2015) (no actual knowledge where incident report did not provide notice of essential facts constituting claim that City's negligent maintenance of boardwalk caused fall); - 27- Lamprecht v. Eastport-South Manor C.S.D., 129 A.D.3d 1084 (2d Dep't 2015) (report indicating student's injury from jumping over fence on stage did not provide actual knowledge of essential facts underlying claim that stage was in dangerous condition); Bramble v. New York City Dep't of Educ., 125 A.D.3d 856 (2d Dep't 2015) (report that employee injured while breaking up fight did not provide actual knowledge that injury was caused by malfunctioning door as statute contemplates "not only knowledge of the facts, but also how they relate to the legal claim to be asserted"); Kuterman v. City of New York, 121 A.D.3d 646 (2d Dep't 2014) (in order for report to provide actual knowledge of essential facts, "must be able to readily infer ... that a potentially actionable wrong had been committed by the public corporation"); DeVivo v. Town of Carmel, 68 A.D.3d 991 (2d Dep't 2009) (for accident report to provide actual knowledge "must be able to readily infer from that report that a potentially actionable wrong had been committed by the municipal corporation"). This same approach has been taken by the Fourth Department. In Folmar v. Lewiston-Porter C.S.D., 85 A.D.3d 1644 (4th Dep't 2011), in reversing the order granting leave to serve a late notice of claim, that Court held that the school district was not aware of the allegations asserted in the proposed notice of claim, and "was unaware of any facts to suggest that it was responsible for claimant's injuries despite its knowledge that the accident occurred." ld. at 1645. A municipal - 28- corporation's mere "knowledge of the accident and the injury, without more, does not constitute 'actual knowledge of the essential facts constituting the claim. '" Id. at 1645 (quoting Felice, 50 A.D.3d at 147-48); LeMieux v. Alden High School, 1 A.D.3d 995 (4th Dep't 2003) (knowledge of injury is not knowledge of essential facts constituting claim that there was insufficient sand in landing pit). In Brown v. City of Buffalo, 100 A.D.3d 1439 (4th Dep't 2012), claimant was injured when she drove off the roadway up an embankment on a dead end street. It was held that claimant failed to establish that the City had actual knowledge of the essential facts based on a police accident report. Noting that one must be readily able to infer from the report "that a potentially actionable wrong had been committed by the public corporation," the Fourth Department held that the fact that the police department had knowledge of the incident "without more, cannot be considered actual knowledge of the claim" against the City. Id. at 1440- 41; see Candino v. Starpoint C.S.D., 115 A.D.3d 1170 (4th Dep't 2014), aff'd, 24 N.Y.3d 925 (2014) (where wrestler allegedly contracted skin infection at tournament, knowledge of another wrestler's injury did not provide actual knowledge of claimant's injury). The Third Department has articulated a similar analysis. In Curiel v. Town of Thurman, 289 A.D.2d 737 (3d Dep't 2001), Iv. to app. den., 97 N.Y.2d 611 (2002), the late notice of claim application was denied in a case where petitioner - 29- was injured when the car in which he was a passenger left the road and struck a tree. Petitioner belatedly learned that the roadway where the accident occurred changed from a paved surface to a dirt surface when he eventually received the police investigatory file. The Third Department found that the Town had no actual knowledge of the essential facts because the police report did not even mention the change in roadway conditions, defects or other possible causes of the accident "which would have connected the accident with any negligence on the part of the municipality or otherwise reveal the nature of this claim." Curiel, 289 A.D.2d at 738. Therefore, no actual knowledge of the essential facts of the claim was imputed to the defendant Town. The same result was reached in Wilson v. City of Binghamton, 248 A.D.2d 780 (3d Dep't 1998), where petitioner was injured in a fall from a jungle gym. Although the police incident report indicated that she was injured when she tripped stepping off the jungle gym, it "did not connect the incident with any negligence on the part of respondent or otherwise reveal the nature of the claim" and "was insufficient to furnish actual knowledge of the essential facts of the claim." Id. at 780.; see Conger v. Ogdensburg City Sch. Dist., 87 A.D.3d 1253 (3d Dep't 2011) (although defendant District generally aware of petitioner student's fall and resulting injury during physical education class, there was no indication it was aware of essential facts underlying claim, or of claim that injuries were due to - 30 - District's negligence); Heffelfinger v. Albany Int'l Airport, 43 A.D.3d 537 (3d Dep't 2007) (although defendant aware of petitioner's accident and injury, no evidence of Airport's actual knowledge of essential facts of claim that accident was caused by poor lighting); Johnston v. Town of Putnam Valley Police Dep't, 167 A.D.2d 612 (3d Dep't 1990) (late notice of claim motion denied where, despite awareness of general facts and circumstances surrounding accident, nothing in records indicated "that the accident was connected with any negligence on the part of the municipal corporation"). In Bullard v. City of New York, 118 A.D.2d 447 (lst Dep't 1986), the First Department provided a similar analysis of the actual knowledge language in General Municipal Law §50-e (5). Plaintiff sought leave to serve a late notice of claim for mental suffering based upon the City'S failure to notify her of her son's death and burial in Potter's Field. The police were aware of his death when struck by a train. The Court held that "while the City had notice of knowledge of the occurrence of the death, it does not establish that it had any knowledge of the basis of the claim made by [the mother]. Id. at 450. Under §50-e (5), the document relied upon for knowledge "must 'connect' the occurrence with negligence by the public corporation." Id. at 450-51. In this regard, the First Department noted that the 1976 amendment of §50-e (5) did not alter the requirement of "knowledge of the claim, not notice of the underlying wrong." Id. at 451. - 31 - In Chattergoon v. New York City Housing Auth., 161 A.D.2d 141 (1st Dep't 1990), aff'd, 78 N.Y.2d 958 (1991), the order granting petitioner's late notice of claim in a wrongful death action was reversed. The petitioner contended that his delay in the proceedings was related to difficulty in obtaining records due to an ongoing police investigation into the decedent's murder. However, the First Department rejected petitioner's contention that the Authority had actual notice of the occurrence by virtue of the police investigation into murder, noting that what constitutes knowledge of the claim is "not knowledge of the wrong ... [but] [w]hat the statute exacts is notice of 'claim.'" Chattergoon, 161 A.D.2d at 142 (quoting Thomann, 256 N.Y. at 172). As the police investigation was geared to finding the murderer, and not toward preparing for a possible claim for pain and suffering caused by the negligence of the Authority, it did not have actual notice of the claim. Chattergoon, 161 A.D.2d at 142. Significantly, this Court affirmed the First Department's denial of the late notice of claim motion. Chattergoon v. New York City Housing Auth., 78 N.Y.2d 958 (1991). In Webb v. New York City Housing Auth., 35 A.D.3d 313 (1st Dep't 2006), the First Department reversed an order granting leave to file a late notice of claim. It found that where the Authority's records were "silent as to a causal connection between the child's injuries and negligence on the part of the defendant," it had "no knowledge of its possible culpability in the incident and no reason to - 32 - investigate." Id. at 314; Mehra v. City of New York, 112 A.D.3d 417 (1st Dep't 2013) (accident report provided no actual knowledge of essential facts of claim alleging Labor Law liability or connecting incident to claim against defendant); Ifejika-Obukwelu v. New York City Dep't of Educ., 47 A.D.3d 447 (1st Dep't 2008) (even awareness that plaintiff was assisted by defendant's employees after fall, does not establish notice that defendant was negligent); Pineda v. City of New York, 305 A.D.2d 294 (1st Dep't 2003) (no actual notice of claim where police report provided no indication of "causal connection between plaintiff s injuries and acts of negligence on defendants' part"). The First Department has also applied Williams v. Nassau County Medical Ctr., 6 N.Y.3d 531 (2006), in a number of malpractice cases, holding that the defendants' maintenance of hospital records, which did not evince a deviation from accepted practice, did not provide notice that there was malpractice that allegedly caused injury, so as to provide defendants with actual knowledge of the underlying claim. See Basualdo v. Guzman, 110 A.D.3d 610 (1st Dep't 2013); Velazquez v. City of New York HHC, 69 A.D.3d 441 (1st Dep't 2010). As these cases indicate, the Order of the Second Department herein IS squarely within the analysis of the actual knowledge requirement of General Municipal Law §50-e (5) consistently applied by courts throughout the State. In order for a petitioner to prevail on a late notice of claim application he/she must -33- establish that the municipal entity was aware not only of an injury, but also of facts indicating that some negligence of the municipal entity caused the injury. See Williams, 6 N.Y.3d at 537. The public corporation must be able to "readily infer" that there is a causal connection between some actionable wrong committed by it and the injury claimed by the petitioner. See Thill, 128 A.D.3d at 97; Brown, 100 A.D.3d at 1440. It is clear that the District in the present case had no such awareness of a causal connection between the alleged placement of the sign and petitioner's son being struck by a vehicle when attempting to cross the street. This was a proper basis for the denial of the late notice of claim application. Petitioner seemingly misunderstands this analysis. For example, petitioner claims that the motion court "found" that the District had actual knowledge of the sign's placement and removal (Petitioner-Appellant's Brief, at 19-20). In fact, the motion court merely assumed, "solely for the purposes of the instant application," that there was actual knowledge of the placement and removal of the sign (6). More to the point, the motion court went on to state that notice of the placement and removal of the sign "is not the 'notice' that is required to excuse a late notice of claim" (6). Rather, it properly followed the above-cited case law and held that the District had to have notice that the placement of the sign "contributed" to the happening of the accident (7). - 34 - The same analysis, giving great weight to the actual knowledge factor, was properly applied by the Second Department which held that "even assuming" that the District was responsible for the placement of the sign, petitioner failed to show that the District was aware that "the placement of the sign was connected with the happening of the accident in a way that would give rise to liability on the part of the School District" (85). Where there was no evidence of actual knowledge of such a connection, the Second Department properly exercised its discretion to affirm the denial of petitioner's application. Because of petitioner's faulty analysis of the actual knowledge requirement, he relies upon numerous cases that have no applicability herein. F or example, petitioner incorrectly relies upon several motor vehicle cases, including Bakioglu v. Tornabene, 117 A.D.3d 658 (2d Dep't 2014), Vasquez v. City of Newburgh, 35 A.D.3d 621 (2d Dep't 2006), and St. Paul Guardian Ins. Corp. v. Pocatello Fire Dist., 90 A.D.3d 761 (2d Dep't 2011). In Bakioglu and Vasquez, police vehicles, operated by police department employees, were involved in accidents which were immediately investigated by the police. In St. Paul, the Fire District's employee operated a truck that was involved in an accident, and the police report gave notice from which it could be readily inferred that the employee driver was negligent. In these cases, there was immediate notice of a connection between the defendants' acts and the injury which was sufficient to support an inference of actual - 35 - knowledge of the essential facts constituting the claim. No such facts are present in the case at bar. Similarly, Claud v. West Babylon U.F.S.D., 110 A.D.3d 663 (2d Dep't 2013), and Leeds v. Port Washington U.F.S.D., 55 A.D.3d 734 (2d Dep't 2008), are also distinguishable from the present case. In Claud, there was some evidence that plaintiff had placed defendant on notice on the accident date that injury was related to a defective door, and a detailed accident report was prepared. In Leeds, defendant's employee witnessed the accident during a field trip and prepared an incident report within 24 hours. Both cases found such evidence sufficient to show timely actual knowledge of the essential facts of the claim. However, such evidence is totally missing in the present case. B. The District's Alleged Placement of the Sign Did Not Provide Actual Knowledge of the Essential Facts of the Subject Claim. Petitioner argues that the District had actual knowledge of the essential facts of the claim because it negligently placed the subject sign. This argument is without merit because, even assuming the sign was negligently placed, that alone, without any notice that the placement of the sign was causally connected to the petitioner's son's accident, was insufficient to provide actual notice of the present claim. General Municipal Law §50-e (5) requires more than a contention that the entity was negligent. To be granted leave to serve a late notice of claim requires - 36- proof that the entity had timely notice that its negligence was connected to petitioner's injury. Thus, even submitting proof of the entity's negligence does not require that petitioner's application be granted. The flaw in petitioner's argument can be seen in his contention that the Second Department incorrectly relied upon Mitchell v. City of New York, 77 A.D.3d 754 (2d Dep't 2010). In Mitchell, petitioner was injured in a motor vehicle accident when, driving at a speed of 100 miles per hour, he lost control of his car and broke through a guardrail along the highway. Petitioner alleged that the guardrail was defective. The Mitchell Court noted that the police investigation "failed to suggest any connection between the happening of the accident and any alleged negligence" by the City, and denial of petitioner's late notice of claim application was affirmed. Mitchell, 77 A.D.3d at 755; see Iacone v. Town of Hempstead, 82 A.D.3d 888 (2d Dep't 2011) (no showing of any connection between petitioner's accident and alleged negligence of Town with respect to traffic light); Saafir v. Metro-North Commuter Railroad Co., 260 A.D.2d 462 (2d Dep't 1999) (in slip and fall on ice, accident report and log insufficient to provide notice where there was no suggestion of connection between accident and defendant's negligence). Petitioner argues that Mitchell is inapplicable because it did not involve an instrumentality that was defective from inception, making an assumption that the - 37 - guardrail was properly placed (Petitioner-Appellant's Brief, at 28). However, such an assumption is not supported by the Mitchell decision itself which provides no description of the alleged defect, merely noting the claim that the accident was caused by "a defective guardrail." Mitchell, 77 A.D.3d at 754. This can certainly be understood to mean that the guardrail was defective from the time of installation, not that its condition deteriorated as petitioner contends. Therefore, the Second Department's reliance on Mitchell was not inappropriate. Both Mitchell and the decision in the present case are also consistent with cases where a defendant placed an allegedly unsafe instrumentality that caused injury. See Sparrow v. Hewlett-Woodmere U.F.S.D., 110 A.D.3d 905 (2d Dep't 2013) (no actual knowledge of claim that playground equipment installed by District was unsafe); Matter of Doyle v. Elwood U.F.S.D., 39 A.D.3d 544 (2d Dep't 2007) (no actual knowledge of connection between accident and negligent assembly of table which injured claimant); Devivo v. Town of Carmel, 68 A.D.3d 991 (2d Dep't 2009) (no actual knowledge of connection between claimant's skateboarding accident and hard surface where impact-absorbent surface not provided). Therefore, the Second Department did not err in relying on Mitchell. It is well-established that even where there is an allegation of the improper construction or placement of an instrumentality by a municipal entity, that mere allegation of - 38 - negligence without more does not require that a petitioner be granted leave to serve a late notice of claim. What is required is actual knowledge of a causal connection between the improper construction or placement of the instrumentality and petitioner's injury, not knowledge of the negligence alone. Therefore, the District's purported negligent placement of the sign in the present case did not provide it with actual knowledge of the remote claim that the sign had any connection to the motor vehicle accident which caused petitioner's injury. Petitioner's argument that the District had actual knowledge of the essential facts because of its purported violation of the Town of Brookhaven Code is also unavailing. As an initial matter, the proposed notice of claim contains no allegation of this alleged Code violation (19-20). It is well-established that "[ c ]auses of action for which a Notice of Claim is required which are not listed in the plaintiffs original Notice of Claim may not be interposed." Mazzilli v. City of New York, 154 A.D.2d 355 (2d Dep't 1989). "The addition of such causes of action which were not referred to, either directly or indirectly in the original Notice of Claim, would substantially alter the nature of the plaintiffs claims." Demorcy v. City of New York, 137 A.D.2d 650 (2d Dep't 1988); see Harrington v. City of New York, 6 A.D.3d 662 (2d Dep't 2004); Tiburcio v. New York City Trans. Auth., 270 A.D.2d 110 (1 st Dep't 2000); Ford v. Babylon U.F.S.D., 213 A.D.2d 447 (2d Dep't 1995). An amendment to add a new theory of liability as to the - 39 - alleged Code violation is not within the purview of General Municipal Law §50-e (6). See Fleming v. City of New York, 89 A.D.3d 405 (lst Dep't 2011); White v. New York City Housing Auth., 288 A.D.2d 150 (lst Dep't 2001). Therefore, petitioner's argument based upon a theory not alleged in the proposed notice of claim should be disregarded. Neither did petitioner make any argument as to the alleged Code violation in the late notice of claim application. The issue was not raised by petitioner until his appeal to the Second Department. Clearly, determination of this alleged Code violation requires factual information beyond the scope of the present Record. Therefore, the purported Code violation, raised for the first time on appeal, should not be considered as it was not preserved for appellate review. In any event, the fact that petitioner himself did not appreciate the purported violation and only belatedly raised it underscores the fact that the alleged violation would not have provided the District with actual knowledge that the placement of the sign was in any way connected to the subject motor vehicle accident. Therefore, petitioner's belated assertion that there was a Code violation should not be considered on the present application. Petitioner contends that actual knowledge exists herein by virtue of the District's employee's acts. Once again, petitioner fails to recognize that such actual knowledge only exists where the municipal entity has a timely awareness of - 40- a connection between those acts and petitioner's injury. The District herein had no awareness of any connection between the placement of the sign and the motor vehicle accident injuring petitioner's son. This contrasts with the numerous cases incorrectly relied upon by petitioner finding actual knowledge, which arose in factual settings not even remotely similar to the present case. This erroneous analysis can only be demonstrated by close review of the facts in each case. Petitioner cites several motor vehicle cases in which the municipal entity was found to have actual knowledge of the claim. However, that finding was not based solely on the acts of employees, but also on records, reports, and other information indicating a direct and immediate connection between those acts and injury to the petitioners. See In re Thomas v. City of New York, 118 A.D.2d 537 (1 st Dep't 2014) (where petitioner injured in motor vehicle accident with police vehicle driven by police officer, City had actual knowledge of direct connection between officer's operation of vehicle and petitioner's injury); Gibbs v. City of New York, 22 A.D.3d 717 (2d Dep't 2005) (where plaintiff injured while being transported in defendant's ambulance due to driver's braking, defendant's records indicated that employees were at fault in accident); Ayala v. City of New York, 189 A.D.2d 632 (1st Dep't 1993) (where petitioners injured in collision with ambulance, City had actual knowledge because its driver was operating vehicle, and police accident report noted petitioner's claim that he had green light in his - 41 - favor when struck by ambulance); Whitehead v. Centerville Fire District, 90 A.D.2d 655 (3d Dep't 1982) (where plaintiff was injured in accident with defendant's fire engine, defendant had actual knowledge where its insurance carner was put on notice of accident, where its attorney resigned because of anticipated litigation which his partner was handling for plaintiff, and where defendant's employees were involved in collision). Petitioner's reliance on these motor vehicle cases is misplaced as the District herein had no information making a direct connection between the sign and the subject motor vehicle accident which involved no District employees. Petitioner cites several medical malpractice cases in which the municipal entity was found to have actual knowledge of the claim. However, once again, that finding was not based solely on the acts of employees, but rather on the entity's possession of treatment records documenting the relevant treatment. See Clark v. Roswell Park Cancer Inst. Corp., 92 A.D.3d 1273 (4th Dep't 2012) (defendant had actual notice as it possessed claimant's treatment records, and treatment formed basis of alleged malpractice); Kavanaugh v. Memorial Hospital & Nursing Home, 126 A.D.2d 930 (3d Dep't 1987) (as defendant had medical records for treatment of plaintiff, it had actual knowledge); Rechenberger v. Nassau County Medical Center, 112 A.D.2d 150 (2d Dep't 1985) (defendant had actual knowledge because it possessed petitioner's treatment records which documented allegedly negligent - 42- treatment); Hamm v. Memorial Hospital, 99 A.D.2d 638 (3d Dep't 1984) (defendants did not lack knowledge of facts where in possession of medical records upon which claim was based). Petitioner's reliance on cases involving alleged police assaults on petitioners, and the direct mishandling of duties by employees such as false arrest, negligent handling of 911 calls, and negligent handling of an eye exam is also misplaced as such cases involve a direct and immediately recognizable connection between such acts and injury. See Erichson v. City of Poughkeepsie Police Dep't, 66 A.D.3d 820 (2d Dep't 2009) (where plaintiff assaulted by City police officers, and notice of claim only six days late, City had actual knowledge); Matter of LaMay v. County of Oswego, 49 A.D.3d 1351 (4th Dep't 2008) (where plaintiff claimed County was negligent in responding to 911 calls, County had actual knowledge based on dispatch of Deputy Sheriff to plaintiffs home in response to calls to investigate, and County's possession of relevant incident reports and 911 records); Ansong v. City of New York, 308 A.D.2d 333 (lst Dep't 2003) (where petitioner attacked by defendant's police officers, City had actual knowledge based on fact that assaulting officers had immediate knowledge of events giving rise to litigation); Nunez v. City of New York, 307 A.D.2d 218 (lst Dep't 2003) (where mentally incapacitated man arrested and prosecuted in connection with rape, City had actual knowledge of claim for false arrest and malicious prosecution based on - 43 - its investigation of underlying crime and its involvement in matter until plaintiff was released); Picciano v. Nassau County Civil Service Comm'n, 290 A.D.2d 164 (2d Dep't 2001) (where plaintiff denied appointment due to deficient vision found during examination performed at County's direction, defendant had actual knowledge because it was in possession of test records and its employees' conduct gave rise to claim); Justiniano v . New York City Housing Auth. Police, 191 A.D.2d 252 (1st Dep't 1993) (where plaintiff struck by Authority police car, beaten by Authority police, and arraigned on charges subsequently dismissed, Authority had actual knowledge of claim of false imprisonment and malicious prosecution as such knowledge was imputed to it through officers who beat and arrested plaintiff, and initiated prosecution). All of the above cases cited by petitioner arise in factually distinguishable contexts where there is a direct and immediate connection between the actions of municipal employees and the purported injury to the petitioner. No cases cited by petitioner involve anything like the remote act of placing a sign as in the present case which allegedly then had some unknown connection to a subsequent motor vehicle accident in which no District employees were involved. Therefore, petitioner has cited no case law that supports a claim that the mere alleged placement of the sign by the District should be deemed to provide actual knowledge of the facts constituting the claim. - 44- C. The District's Alleged Removal of the Sign Did Not Provide Actual Knowledge of the Essential Facts of the Subject Claim. Petitioner also argues that the District had actual knowledge of the essential facts of the claim because it purportedly removed the subject sign at some point after the accident. As an initial matter, while petitioner claims it is "undisputed" that the District removed the sign, there is no Record evidence that it did so (Petitioner-Appellant's Brief, at 33-34). Petitioner made no showing that the District removed the sign. Further, the motion court did not find that the District removed the sign, but merely assumed that the District had knowledge of its removal for purposes of the application (6). Therefore, there is no Record evidence to support petitioner's removal argument. However, even assuming that a District employee removed the subject sign, this did not provide actual knowledge of the essential facts of the claim. Again, the connection between the sign and motor vehicle accident was not apparent at the time of accident. Even the police who investigated the accident did not indicate that the sign obstructed anyone's view. Such evidence demonstrates the District's lack of actual knowledge. See Ribeiro v. Town of North Hempstead, 200 A.D.2d 730 (2d Dep't 1994) (where police accident reports made no reference to stop sign being obscured by foliage, defendant did not have actual knowledge of essential facts). - 45 - The photographs of the accident site reveal that the sign could not have obstructed the view of either petitioner or the driver as it was set back off the sidewalk that petitioner had to cross before entering the roadway where he was struck by the car. Petitioner's son would have had an unobstructed view of the approaching westbound vehicle as he walked across the sidewalk before entering the roadway. Similarly, the approaching driver would have had an unobstructed view of the southbound pedestrian as he crossed the sidewalk well in front of the sIgn. This evidence supports the District's argument that the claim is patently meritless set forth in Point III. The District's lack of actual knowledge of the facts of the claim is intertwined with the patent lack of merit to the claim that the sign somehow obstructed the view of the petitioner and driver. Given the fact that no one perceived the sign to present an obstruction, its removal would not have suggested that the sign was somehow connected to a motor vehicle accident. Petitioner incorrectly asserts that the Second Department failed to apply Matter of Battle v. City of New York, 261 A.D.2d 614 (2d Dep't 1999). Petitioner's late notice of claim application was granted in Battle. Battle held that the City had actual knowledge of petitioner's claim based on records of inspections of the premises performed by City employees, and by the employees' remedying of violations. Based upon the limited information in the Battle decision, it appears - 46- that the City's records and inspections were deemed adequate to provide notice that there were issues on the subject premises, suggesting a connection to petitioner's injury. This is supported by the Battle Court's citation to Matter of Holmes v. City of New York, 189 A.D.2d 676 (1st Dep't 1993), where it was held that several inspections conducted by a City agency, which also maintained records, provided actual notice of the essential facts of the claim. The facts in Battle are clearly distinguishable from those herein. There is no evidence that the District had notice based upon inspections and no evidence that the District had an awareness that the sign violated any code. There is merely evidence that the sign was removed at some point after the accident, presumably because the advertised play was over, not because a violation was being remedied as in Battle. Given these factual differences, Battle does not support petitioner's contention that the purported removal of the sign provided actual knowledge of his claim particularly as there was no evidence to connect the sign with the subject motor vehicle accident. As there is no evidence that the District had the actual knowledge found in Battle, petitioner's reliance on that case is misplaced. Petitioner incorrectly cites Rivera v. City of New York, 169 A.D.2d 387 (1st Dep't 1991), for the proposition that removal of the sign was "tantamount to an inspection of the accident scene" (Petitioner-Appellant's Brief, at 35). The issue in Rivera was whether the timely notice of claim was fatally defective where it did - 47- not precisely identifY the accident site, but where evidence indicated that it happened at one of two specific locations. The City did not move against the notice of claim until the eve of trial, and ten years after the commencement of the action. Noting that the City failed to conduct even a minimal investigation, the First Department held that it had been adequately informed of the accident location, and that an inspection would have enabled it to discover the specific pothole in which plaintiff fell. Therefore, the City's motion to dismiss the complaint was denied. The Rivera case does not support petitioner's contention that the purported removal of the sign herein amounted to an inspection and provided timely actual knowledge of the facts. Neither does petitioner have an estoppel argument under Bender v. New York City Health & Hospitals Corp., 38 N.Y.2d 662 (1976), a case also distinguishable on its facts. Bender addressed whether the Corporation may be estopped from asserting the lack of a notice of claim after passage of legislation transferring responsibility for hospitals from the City to the Corporation, and requiring service of the notice of claim on the Corporation. The City did not apprise plaintiffs that the notice had been filed with the wrong entity. This Court held that where the governmental entity wrongfully or negligently induces reliance by a party, who then detrimentally changes his position, the entity should be estopped from asserting a defense it could otherwise have raised. See Bender, 38 - 48 - N.Y.2d at 668. This principle does not apply herein where the District did nothing to induce reliance by petitioner, and petitioner did not change his position based upon any act or omission by the District. Petitioner has no estoppel argument in the present case. Therefore, petitioner's argument that removal of the sign provided the District with actual knowledge of the essential facts is without merit and should be disregarded. D. Petitioner's Report of the Accident to the District Did Not Provide Actual Knowledge of the Essential Facts of the Subject Claim. Petitioner also argues that the District had actual knowledge of the essential facts of the claim because he reported his son's accident to unnamed officials at Centereach High School where his son was a student (56). Centereach High School is a school within the District (56). Petitioner's failure to identify to whom the report was made undercuts his notice argument. See Perry v. City of New York, 133 A.D.2d 692 (2d Dep't 1987). The officials at Centereach High School were advised that one of its students was seriously injured at 8:30 p.m. on a Saturday evening, while crossing Route 25 at the intersection of Marshall Drive, a public street (19, 55). There was also evidence that a sign advertising a production of "The Music Man" at Newfield High School, another school within the District, was present near that intersection - 49- (15, 19). Petitioner did not represent that he reported the accident to officials at Newfield High School where the play was performed. While petitioner reported the accident to one high school, and where a sign advertising a school play at a different school had been placed near the intersection, petitioner does not state that he provided the District with notice that the placement of the sign had any connection to the accident or the claim that his son's injuries were due to the District's negligence (Petitioner-Appellant's Brief, at 37-38). Petitioner's contention that the District's mere awareness of the student's accident, his injuries, and the presence of a sign in the vicinity amounted to actual knowledge of the facts of the claim is simply incorrect. Petitioner claims that the report of the accident "established a common nexus" between the accident location and the sign (Petitioner-Appellant's Brief, at 38). While it may be that the accident occurred in the same general area as the sign, the existence of a common location is not the same as knowledge of a causal connection or nexus between the sign and accident. This is because, without actual knowledge of a causal connection, the District would have had no reason to investigate the accident caused by a vehicle unrelated to the District which occurred at a time when the student was not under the District's control. The fact that one school within the District had knowledge that the student was injured in an accident, and another school might have been involved in the - 50 - placement of the sign may not be dispositive, but those facts provide further evidence of the District's lack of awareness that the sign was in any way connected to the accident. However, contrary to petitioner's assertion, neither the motion court nor the Second Department based its finding that the District did not have actual knowledge of the facts of the claim on the fact that different schools knew different facts. Petitioner argues that the information available to each of the schools is imputed to the District. However, the employee accident cases he cites in this regard are in no way applicable herein. For example, in Cicio v. City of New York, 98 A.D.2d 38 (2d Dep't 1983), where a sanitation employee was injured on the job, a co-worker immediately filed an incident report and supervisors were aware that petitioner was in the hospital after the accident. The accident report was deemed to import actual knowledge of the accident to the City. Similarly, in Somma v. City of New York, 81 A.D.2d 889 (2d Dep't 1981), where a sanitation employee was injured at work, the Line of Duty Injury Report prepared on the accident date describing the date, time and place of occurrence, manner in which the injuries occurred, and the injuries sustained, was deemed to provide actual knowledge of the essential facts of the claim. The same result was reached in Lucas v. City of New York, 91 A.D.2d 637 (2d Dep't 1982), a case involving a work-related injury to a City police officer. - 51 - The accident report prepared on the accident date, and his ongoing treatment paid for by the police department, was deemed to provide actual knowledge of the facts of the claim. Clearly, petitioner's reliance on these three employee injury cases is misplaced as there is no evidence herein that the District had the kind of immediate notice of the nature of the claim found in the employee accident reports. Neither does So sa v. City of New York, 124 A.D.3d 515 (lst Dep't 2015), support petitioner's argument. The City had actual knowledge of petitioner's claim in Sosa, arising from a multi-vehicle accident, based upon police accident reports, the records of the police investigation, and a witness statement from a Sanitation supervisor. This evidence provided actual knowledge because it "sufficiently connected the accident to the City'S negligence in maintaining the road" and "sufficiently apprised the City of petitioner's negligence claim against it." Id. at 515. Petitioner cites a number of other cases to support his claim that the District had actual knowledge based on the fact that the accident was reported to it. However, once again, the cases arise in factual scenarios with vastly different facts from the present case. For example, in Fennell v. City School Dist. of Long Beach, 118 A.D.3d 783 (2d Dep't 2014), it was held that the District had actual knowledge of the essential facts of the claim because its security officer prepared an accident report - 52 - and written statement on the accident date, and an OSHA report of injury was filed with the District. As the documents described how the accident occurred, and that petitioner was transported to the hospital, they were held to provide knowledge of petitioner's claim under Labor Law §240 (1). In Bovich v. East Meadow Public Library, 16 A.D.3d 11 (2d Dep't 2005), plaintiff tripped and fell on uneven sidewalk, fracturing her hip. Where Library employees had contemporaneous actual notice of the facts by virtue of assisting plaintiff after her fall, by calling for an ambulance due to the severity of injury, and where the sidewalk was repaired shortly thereafter, it was held that the "Library had no reasonable belief of nonliability." Id. at 20-21. Given those facts, the application to serve a late notice of claim was granted. In Zimmet v. Huntington U.F.S.D., 187 A.D.2d 436 (2d Dep't 1992), petitioner was injured on school property, was observed by an aide, tended to by the school nurse, and an accident report was prepared by the principal. The injury sustained - a fractured wrist - was deemed serious enough to indicate that investigation was advisable. Given those facts, the District had actual notice, sufficient to warrant granting the late notice of claim application. In Bird v. Port Byron C.S.D., 231 A.D.2d 916 (4th Dep't 1996), petitioner was injured in a school hallway between classes, and examined by the school nurse who called an ambulance and prepared an accident report. The report, indicating a - 53 - senous Injury on school premIses, alerted the District of the advisability of investigating and provided actual knowledge of the essential facts. In Urban v. Waterford-Halfmoon U.F.S.D., 105 A.D.2d 1022 (3d Dep't 1984), petitioner was injured in a fall in an unlit staircase at the District High School while attending a basketball game. This accident and injury was reported to the District by the petitioner's father several days after the accident. The father also requested information as to the District's insurance coverage. Once again, it was held that the report of a serious injury on school premises alerted the District to the advisability of investigating and provided actual knowledge of the essential facts. These cases relied upon by petitioner have many facts in common - accidents occurring on the defendant's property, of which the defendant municipal entity was aware immediately or within a few days, or which were witnessed by employees, for which reports were prepared providing information indicating that investigation was advisable. Those factual scenarios immediately suggested the possibility that liability could be imposed upon the municipal defendant because of a connection between an occurrence on defendant's property and resulting injury. No such connection is present in the case at bar where the District was merely apprised that, on a public street, on a Saturday night, petitioner's son had been - 54- struck by a vehicle, not connected to the District. Nothing remotely suggested that this was an accident for which the District could be held liable. E. Petitioner's Reliance on Amabile v. City of Buffalo is Misplaced. Petitioner incorrectly relies on Amabile v. City of Buffalo, 93 N.Y.2d 471 (1999). Petitioner made no argument on his initial application or in the Second Department regarding Amabile. His comparison of prior written notice laws to the notice of claim provisions of General Municipal Law §50-e is the proverbial inapt comparison of apples to oranges. In Amabile, this Court addressed the exceptions to prior written notice statutes, reiterating that it had recognized only two such exceptions, namely, where the municipality creates the defect through an affirmative act of negligence, and where a "special use" confers a special benefit upon the municipality. See Amabile, 93 N.Y.2d at 474. Amabile specifically concluded that constructive notice of a defect may not override the statutory requirement of prior written notice. Id. at 475. Amabile clearly does not remotely address the requirements of General Municipal Law §50-e. Prior written notice laws are meant to limit municipal liability for defects which would not immediately come to the attention of the municipality without prior written notice. See Bacon v. Arden, 244 A.D.2d 940 (4th Dep't 1997). The focus is on the defect and whether the municipality knew about it. In contrast, the - 55 - notice of claim requirement focuses on whether the municipality had actual knowledge of the facts of the claim, not whether it had actual knowledge of the condition. Therefore, how the condition came into existence is not part of the notice of claim analysis. Rather, the key to the analysis is whether the municipality had notice of the connection between the condition and an injury to claimant for which it can be held liable. Conceivably then, a municipality could be aware of a condition, perhaps may have even created it, but nonetheless have no actual knowledge that the condition was causally connected to a claim for injury. The lack of actual knowledge of that connection would require denial of a late notice of claim application. Indeed, compliance with the notice of claim requirement - unlike the prior written notice requirement - cannot be completely eradicated; its lateness may only be excused up to a point, where a timely application for such relief is made. See Lingfei Sun v. City of New York, 131 A.D.3d 1015, 1016 (2d Dep't 2015). In addition, petitioner's argument is not persuaSIve gIven the lack of evidence that the placement of the sign amounted to a defect. Of course, in order to rely on the affirmative creation of a defect under Amabile, one would have to demonstrate that a defective condition actually exists. Inasmuch as the police report here does not indicate any obstructed view at the intersection, and the - 56 - photographs reveal that the sign does not block the view of anyone standing on or driving toward the sidewalk, there is simply no evidence that the District affirmatively created a defective condition. Petitioner also fails to address a glaring difference between the "hazardous conditions" involved in the cases he cites. In those prior written notice cases, the hazards were directly involved in the injury-causing accident. See Oboler v. City of New York, 8 N.Y.3d 888, 889 (2007)(plaintiff stepped on depressed manhole cover and foot struck ridge of asphalt encircling cover); Amabile v. City of Buffalo, 93 N.Y.2d 471, 472 (1999)(plaintiff tripped over concrete stop sign post protruding out of sidewalk); Methal v. City of New York, 116 A.D.3d 743 (2d Dep't 20 14)(plaintifftripped and fell on a piece of raised asphalt). Here, petitioner's son did not trip over the subject sign. Rather, he was struck by a motor vehicle as he attempted to cross a public roadway which was not in the immediate vicinity of a District school. It was by no means obvious that the subject sign, placed back from the comer of the intersection, would be deemed the cause of a motor vehicle accident, and that petitioner would seek to hold the District liable for that accident. This is far different from an accident directly caused by contact with a defect on the municipality's street or sidewalk. Therefore, petitioner's argument that "the same municipal actions that provide - 57 - adequate notice are at the same time construed to be inadequate to provide notice" is inherently flawed (Petitioner-Appellant's Brief, at 33). While this Court has created two exceptions to prior written notice, see Amabile, 93 N.Y.2d at 474, petitioner has identified no cases similarly creating exceptions to the notice of claim requirement of General Municipal Law §50-e. Interestingly, General Municipal Law §50-e (4) provides that its notice of claim requirements are "exclusive" except that compliance with the notice of claim law does not dispense with compliance with any prior written notice requirements. Clearly, this contemplates that different types of notice are required for an action against some public corporations - notice of the claim prior to suit, and notice of the defect in order to proceed once suit has been commenced. Given these two discrete requirements, there is no inconsistency in analyzing the two types of notice differently. Therefore, petitioner's attempt to apply the Amabile affirmative creation exception herein is without any legal basis. Finally, adoption of petitioner's argument would essentially eliminate the notice of claim requirement whenever it is claimed that the entity affirmatively created the defect. Following petitioner's argument, a petitioner could then assert that it did not have to serve a timely notice of claim because the entity had notice of the defective condition by virtue of affirmative creation. Petitioner has - 58 - identified no case law supporting this view. Therefore, petitioner's analogy to Amabile should be rejected. Given the lack of any actual knowledge that the remote placement of the sign had a connection to the subject motor vehicle accident in a way that would give rise to liability on the District's part, the Second Department properly affirmed the denial of petitioner's late notice of claim application. That exercise of its discretion should be affirmed. POINT III THE SECOND DEPARTMENT PROPERLY EXERCISED ITS DISCRETION IN DENYING THE LATE NOTICE OF CLAIM APPLICATION WHERE PETITIONER'S CLAIM WAS PATENTLY MERITLESS. The District has argued that petitioner's application should be denied because the claim is patently meritless. The evidence demonstrates that the location of the sign at the time of accident would not have obstructed the view of either the petitioner pedestrian or the driver. That evidence also supports a finding that mere knowledge of the placement of the subject sign would not have suggested any connection between the motor vehicle accident and the sign which was clearly set back from the comer of the intersection. As a result, petitioner's application was properly denied as there is no legal theory under which he can recover from the District in this case. - 59 - It is well-established that an application for leave to serve a late notice of claim should be denied where a claim is "patently meritless," as there would be little sense to grant leave in such circumstances. See Forrest v. Berlin C.S.D., 29 A.D.3d 1230 (3d Dep't 2006); LoTempio v. Erie County Health Dep't, 17 A.D.3d 1161 (4th Dep't 2005); Williams v. City of New York, 290 A.D.2d 354 (lST Dep't 2002); Swain v. County of Albany, 268 A.D.2d 747 (3d Dep't 2000); Katz v. Town of Bedford, 192 A.D.2d 707 (2d Dep't 1993). Significantly, this Court has also applied the patently meritless analysis in cases involving late notice of claim applications. For example, in Hess v. West Seneca CSD, 15 N.Y.3d 813 (2010), plaintiff sought leave to serve a late notice of claim where a student was struck by a vehicle while crossing a street after school. On appeal to the Fourth Department by the defendant District, the order granting plaintiff s late notice of claim application was affirmed, with two dissents. See Hess v. West Seneca C.S.D., 71 A.D.3d 1568 (4th Dep't 2010). The dissenting justices found that the motion court had abused its discretion in granting the late notice of claim application inasmuch as the District "demonstrated that the claim is 'patently meritless.'" Hess, 71 A.D.3d at 1569. This Court agreed with the dissenters, holding that the claim against the District "patently lacks merit" because the District demonstrated that it did not create or have responsibility for the alleged hazardous condition where the student - 60- was injured. Hess, 15 N.Y.3d at 814. As a result, claimant's application to file a late notice of claim was denied. Id. In so holding, the Hess Court relied on Catherine G. v. County of Essex, 3 N.Y.3d 175 (2004), a case which also held it was an abuse of discretion to permit a late notice of claim where the claim was "patently meritless." See id. at 178. In Catherine G., the claimant sought leave to file a late notice of claim based upon the County's purported failure, under the Social Services Law, to report evidence to the central register that her son had abused her daughters. Id. The Third Department had granted the application for leave to file a late notice of claim on behalf of only one of petitioner's daughters. See Catherine G. v. County of Essex, 307 A.D.2d 446 (3d Dep't 2003). However, this Court found the claim on behalf of the remaining daughter to be patently meritless under the applicable law. See Catherine G., 3 N.Y.3d at 179-81. As a result, this Court denied the late notice of claim application on behalf of the remaining daughter. Id. at 181. The law of this Court and the Appellate Divisions establishes that examination of the merit of a petitioner's claim is appropriate on a late notice of claim application. In the present case, the District argued that the claim was patently meritless because the sign, located north of the intersection, off the sidewalk along Route 25, and set back from the comer, could not have obstructed - 61 - the view of either the pedestrian crossing Route 25 in a southbound direction or the vehicle traveling westbound on Route 25 (65). Police photographs taken at the scene after the accident support this undisputable conclusion (25-29, 68-69). These photos show that any pedestrian crossing Route 25 at the subject intersection would necessarily have been well in front of the sign while crossing the sidewalk and before entering the roadway (25- 29, 68-69). The photographs on pages 26 - 29, 68 and 69 of the record show the intersection from the vantage point of a westbound vehicle, and reveal that no portion of the sidewalk along Route 25 was obstructed by the sign. The Police Accident Report indicates that the accident occurred on Route 25 - which means that petitioner's son would have crossed the sidewalk and been well to the left of the sign as seen in the photographs, and then ultimately would have entered the roadway, again well to the left of the sign, where he was struck by the vehicle (67). Clearly, as a westbound vehicle on Route 25 approached the intersection it would have had an unobstructed view of any pedestrian about to enter the roadway as that pedestrian would have to be on the sidewalk well in front of the sign before crossing (65). These photographs, especially that on page 29, similarly show that the sign also would not have blocked the pedestrian petitioner's view of an approaching car as he began to cross Route 25. - 62- The District further argued that the Police Accident Report does not note any apparent contributing factors in boxes 19 - 22 (23, 66-67). Boxes 19 - 22 provide for responses related to environmental factors such as "view obstructed/limited" and "other environmental." However, despite filling in other codes on the Report, the responding officer did not indicate anywhere in the report that the sign was a contributing factor to the accident (23, 67). Therefore, the Police Accident Report supports a finding that petitioner's claim is patently meritless (65). Use of the evidence demonstrating that the claim is patently meritless also supports a finding that the District had no actual knowledge. The evidence undercuts petitioner's claim that the placement of the sign played any role in causing petitioner's injuries, or that its removal prevented them from discovering what is clearly a patently meritless claim. Based on the evidence, it is clear that the placement of the sign near the intersection was not a proximate cause of the accident. See Pahler v. Daggett, 170 A.D.2d 750 (3d Dep't 1991) (where photographs demonstrate that placement of sign did not obstruct view of approaching traffic, presence of sign was not proximate cause of accident). Therefore, as a matter of law, the placement of the sign in the present case provides an insufficient basis to impose liability upon the District. See Sheehan v. City of New York, 40 N.Y.2d 496 (1976); Vazquez v. - 63 - Roldan, 86 A.D.3d 640 (2d Dep't 2011); Jablonski v. Jakaitis, 85 A.D.3d 969 (2d Dep't 2011); Peralta v. Manzo, 74 A.D.3d 1307 (2d Dep't 2010). Petitioner's late notice of claim application was properly denied. POINT IV THE SECOND DEPARTMENT PROPERLY EXERCISED ITS DISCRETION IN DENYING THE LATE NOTICE OF CLAIM APPLICATION WHERE PETITIONER DID NOT ESTABLISH THE LACK OF SUBSTANTIAL PREJUDICE TO THE DISTRICT. Petitioner argues that the motion court and the Second Department erred in their handling of the prejudice issue. As it is clear that the District had no actual knowledge of the essential facts constituting the claim, and that petitioner failed to demonstrate that his delay would not substantially prejudice the District, the order denying petitioner's late notice of claim application was properly denied. Further, petitioner's application would properly be denied regardless of whether prejudice was demonstrated. A. Actual Knowledge of Essential Facts is Intrinsically Linked to Prejudice. This Court addressed the prejudice Issue in Williams v. Nassau County Medical Center, 6 N.Y.3d 531 (2006), stating that proof of "actual knowledge is an important factor in determining whether the defendant is substantially prejudiced." Williams, 6 N.Y.3d at 539. As this Court found that there was no proof that the Medical Center had actual knowledge in Williams, it held that the Second - 64- Department's finding of substantial prejudice was within the exerCIse of its discretion. See id. Williams is consistent with prior decisions of this Court linking a lack of actual knowledge of the claim with prejudice. See Chattergoon v. New York City Housing Auth., 78 N.Y.2d 958 (1991), aff'g, 161 A.D.2d 141 (1st Dep't 1990); Zarrello v. City of New York, 61 N.Y.2d 628 (1983). Other cases reiterate and firmly establish that the prejudice factor is linked to a finding of actual knowledge of the essential facts of the claim within the statutory time frame. See Brown v. City of Buffalo, 100 A.D.3d 1439 (4th Dep't 2012) (claimant's application properly denied where City lacked actual knowledge, despite its failure to demonstrate prejudice); Felice v. Eastport/South Manor C.S.D., 50 A.D. 3d 138 (2d Dep't 2008) (when entity has actual knowledge of facts constituting claim, it is easier for claimant to demonstrate lack of prejudice); Heffelfinger v. Albany lnt'l Airport, 43 A.D.3d 537 (3d Dep't 2007) (court erred in granting application where respondent had no actual knowledge, even in absence of substantial prejudice); Dell'Italia v. Long Island Rail Road Corp., 31 A.D.3d 758 (2d Dep't 2006) (petition properly denied where no actual knowledge even where Town did not demonstrate substantial prejudice). There is a connection between actual knowledge and prejudice because, without notice of the facts constituting the legal claim, the municipality has no reason to conduct a prompt investigation into the specifics of the claim, and will - 65 - therefore be prejudiced if compelled to defend itself against such claims long after the incident. See Murray v. Village ofMalveme, 118 A.D.3d 798 (2d Dep't 2014); Manuel v. Riverhead C.S.D., 116 A.D.3d 1048 (2d Dep't 2014); Hampson v. Connetquot C.S.D., 114 A.D.3d 790 (2d Dep't 2014); Folmar v. Lewiston-Porter C.S.D., 85 A.D.3d 1644 (4th Dep't 2011); Friend v. Town of West Seneca, 71 A.D.3d 1406 (4th Dep't 2010). This connection flows from the very purpose of the 90 day notice of claim requirement which is to protect the municipality from stale claims, and to provide it with an opportunity to investigate the claim in a timely and effective manner. See Stiffv. City of New York, 114 A.D.3d 843 (2d Dep't 2014); Palmer v. Society for Seamen's Children, 88 A.D.3d 970 (2d Dep't 2011). Thus, the lack of actual knowledge of the essential facts so as to be able to conduct a timely investigation is the very essence of prejudice. Petitioner argues that the lack of actual knowledge of the essential facts should not automatically result in a finding of no prejudice (Petitioner-Appellant's Brief, at 32). However, the cases relied on in this regard are distinguishable. For example, in Underwood v. New York City Housing Auth., 177 A.D.2d 698 (2d Dep't 1991), which dealt with alleged lead poisoning, the Authority was presumed to have maintenance records for the apartment it owned and maintained, and to have the petitioner's treatment records, and as a result no prejudice would result. - 66- Similarly, even without actual knowledge of the essential facts, the respondents were found not to be prejudiced in Haeg v. County of Suffolk, 30 A.D.3d 519 (2d Dep't 2006), and DeMolfetto v. City of New York, 216 A.D.2d 295 (2d Dep't 1995). This was because in both cases, arising from the alleged negligent maintenance and design of the respondents' roads, the conditions had not been changed, allowing a current investigation to be conducted. In the present case, it has been established that the District did not have timely actual knowledge of the facts constituting the claim after the subject accident. Clearly, the absence of such actual knowledge militated against a finding that the District was not prejudiced by petitioner's delay herein. B. It was Petitioner's Burden to Establish the Lack of Prejudice. Petitioner asserts that the Second Department reached the conclusion that the District was substantially prejudiced herein (Petitioner-Appellant's Brief, at 41). This is incorrect. Rather, the Second Department found that petitioner "failed to demonstrate that their delay in serving the notice of claim would not substantially prejudice the School District's ability to defend itself against the claim on the merits" (85). Despite petitioner's assertion to the contrary, it was his burden to establish the District's lack of prejudice. A claimant seeking leave to serve a late notice of claim "bears the burden of showing that the delay will not substantially prejudice the public corporation in - 67- maintaining its defense on the merits." Felice v. Eastport/South Manor C.S.D., 50 A.D.3d 138, 152 (2d Dep't 2008); see Randolph v. Westchester Medical Center, 122 A.D.3d 822 (2d Dep't 2014); Valila v. Town of Hempstead, 107 A.D.3d 813 (2d Dep't 2013); Mitchell v. Town of Greenburgh, 96 A.D.3d 852 (2d Dep't 2012). Petitioner contends that assigning the burden of demonstrating prejudice under General Municipal Law §50-e (5) has been subject to "imprecision" (Petitioner-Appellant's Brief, at 44). While it is true that the language used in the case law is not always as specific or precise as might be optimal, it is actually settled law that the burden rests on the petitioner. In Williams v. Nassau County Medical Center, this Court refused to adopt plaintiffs position that he had been "incorrectly burdened . . . with the responsibility of showing lack of substantial prejudice." 6 N.Y.3d at 538-39. The Second Department had noted that plaintiff in Williams "failed to establish that the defendants would not be substantially prejudiced in maintaining their defense on the merits" due to plaintiffs lengthy delay. Williams v. Nassau County Medical Center, 13 A.D.3d 363, 364-65 (2004). That finding and analysis of the Second Department was not disturbed by this Court, which implicitly upheld the Second Department's placement of that burden on the plaintiff. See Williams, 6 N.Y.3d at 538-39. - 68 - "It makes sense that the burden of establishing the lack of prejudice be placed on the claimant, who, after all, is seeking to excuse his or her failure to comply with the statute." Felice, 50 A.D.3d at 152; see DeVivo v. Town of Carmel, 68 A.D.3d 991(2d Dep't 2009). Further, the notice of claim laws were enacted as part of the relinquishment of sovereign immunity by municipalities and are intended to afford municipalities protection against stale claims. See DiGeloromo v. Metropolitan Suburban Bus Auth., 116 A.D.2d 691, 692 (2d Dep't 1986). Thus, as petitioner is attempting to overcome the strict enforcement of the notice of claim law, the burden was wholly on him to convince the court that he was entitled to pursue his claims despite having failed to timely comply with the law. Permitting late notice should be the exception, not the rule. C. The Presence or Absence of Prejudice is Not Determinative of a Late Notice of Claim Application. Petitioner also argues that even if the District did not have actual knowledge of the facts, his application should have been granted because there was no evidence showing prejudice (Petitioner-Appellant's Brief, at 42-43). This is incorrect because the presence or absence of actual prejudice is not determinative on a late notice of claim application. Bullard v. City of New York, 118 A.D.2d 447 (1st Dep't 1986); Kravitz v. County of Rockland, 112 A.D.2d 352 (2d Dep't - 69- 1985), aff'd, 67 N.Y.2d 685 (1986); Morris v. County of Suffolk, 88 A.D.2d 956 (2d Dep't), aff'd, 58 N.Y.2d 767 (1982). Where a municipal entity has no knowledge of the essential elements of the claim, the application should be denied even where the delay causes no prejudice. See Heffelfinger v. Albany lnt'l Airport, 43 A.D.3d 537 (3d Dep't 2007); Jordan v. City of New York, 41 A.D.3d 658 (1st Dep't 2007); Polanco v. New York City Housing Auth., 39 A.D.3d 320 (1st Dep't 2007); Matter of Carpenter v. City of New York, 30 A.D.3d 594 (2d Dep't 2006); Roberts v. County of Rensselaer, 16 A.D.3d 829 (3d Dep't 2005). Therefore, petitioner's argument that his application should have been granted because there was no evidence of prejudice submitted by the District is without merit. D. Prejudice in Maintaining a Defense is Inferred Where There is No Actual Knowledge of the Facts of the Claim. Petitioner's contention that both the motion court and the Second Department found prejudice based upon unsupported assumptions is similarly lacking in merit (Petitioner-Appellant's Brief, at 53). This is because prejudice in maintaining a defense is inferred when a notice of claim is not timely served. See McGinness v. City of New York, 113 A.D.3d 566 (1st Dep't 2014) (availability of records does not rebut "inference of prejudice" that arises from delay in serving notice of claim); Polanco v. New York City Housing Auth., 39 A.D.3d 320 (1st - 70- Dep't 2007) ("mere existence of records does not 'eliminate the inference that prejudice would accompany the passage of time'''); Vargas v. New York City Housing Auth., 232 A.D.2d 263 (1st Dep't 1996), Iv. to app. den., 89 N.Y.2d 817 (1997) (defendant had no actual knowledge so as to "eliminate the inference that prejudice would accompany the passage of time"). Prejudice is inferred from the entity's inability to investigate promptly. See Gofman v. City of New York, 268 A.D.2d 588 (2d Dep't 2000) (City was prejudiced by inability to investigate while facts surrounding incident were still fresh). This makes perfect sense because "[t]he purpose of the notice of claim requirement is to afford the municipal corporation adequate opportunity to investigate the circumstance [ s] surrounding the accident and explore the merits of the claim while the information is likely to be available. '" Wai Man Hui v. Town of Oyster Bay, 267 A.D.2d 233 (2d Dep't 1999), Iv. to app. den., 94 N.Y.2d 764 (2000). As noted in Felice v. Eastport/South Manor C.S.D., the mere passage of time [six months in Felice] creates prejudice with respect to the fading memories of witnesses. Felice, 50 A.D.3d at 153. As Felice indicated, even where witnesses may still be available to be interviewed, their memory as to the specific manner in which the accident occurred may not be precise, and the defendant might have been prejudiced by their fading memories. Id. at 152-53; see also Corrales v. - 71 - Middle Country CSD, 307 A.D.2d 907 (2d Dep't 2003)("there was no reason for the School District to conduct a prompt investigation, and thus it would be prejudiced if it was compelled to prepare a defense at this late date"); Scolo v. Central Islip U.F.S.D., 40 A.D.3d 1104 (2d Dep't 2007)("because the report did not give the School District a reason to conduct a prompt investigation into its alleged negligence, it would therefore be prejudiced if it were to be compelled to prepare a defense to the claim at this late date"); Ryder v. Garden City Sch. Dist., 277 A.D.2d 388 (2d Dep't 2000) (where there was no reason to conduct investigation, school is prejudiced when belatedly compelled to prepare defense to claim). E. Petitioner's Delay was Sufficient to Support Finding of Prejudice. Petitioner did not seek leave to serve a late notice of claim until more than eight months after the subject accident. Clearly, the passage of this amount of time is sufficient to support the inference of prejudice to the District where it had no actual knowledge of the essential facts constituting petitioner's claim. Leave to serve a late notice of claim has been denied in cases involving similar and even shorter delays than that herein. See Thill v. North Shore C.S.D., 128 A.D.3d 976 (2d Dep't), lv. to app. den., 26 N.Y.3d 914 (2015) (leave denied where delay was almost two months); Stark v. West Hempstead U.F.S.D., 127 A.D.3d 765 (2d Dep't 2015) (leave denied where motion made six months after incident); Randolph v. - 72 - Westchester Medical Center, 122 A.D.3d 822 (2d Dep't 2014) (leave denied where motion made more than three months after 90 days elapsed); Manuel v. Riverhead C.S.D., 116 A.D.3d 1048 (2d Dep't 2014) (leave denied where delay was one month); Bell v. City of New York, 100 A.D.3d 990 (2d Dep't 2012) (four month delay prejudiced City); Abramovitz v. City, 99 A.D.3d 1000 (2d Dep't 2012) (delay of more than four months prejudiced City); DelCarmen v. Brentwood U.F.S.D., 7 A.D.3d 620 (2d Dep't 2004) (error to grant leave where delay was five months after incident); Felice, 50 A.D.3d at 153 (four-and-a-half month delay prejudiced district); Termini v. Valley Stream U.F.S.D., 2 A.D.3d 866 (2d Dep't 2003)( error to grant leave eight months after incident); Price v. Board of Educ., of City of Yonkers, 300 A.D.2d 311 (2d Dep't 2002) (error to grant leave more than five months after accident). F. The Availability of Police Photos Does Not Eliminate Prejudice. Petitioner asserts that the District is not prejudiced herein because of the availability of police photographs taken at the scene after the accident (Petitioner- Appellant's Brief, at 48-49). This argument misunderstands the prejudice issue. As an initial matter, while neither the motion court nor the Second Department mentions the police photographs, that does not mean that neither court evaluated the impact of the photographs on the application. The District made arguments regarding the photographs, particularly because the photographs - 73 - demonstrated that the subject sign would not have obstructed the view of either the petitioner's son or the approaching driver. Clearly, the photographs are very important evidence regarding the merit of petitioner's claim. However, the District is not foreclosed from arguing the lack of merit to petitioner's claim at the same time as arguing prejudice as petitioner suggests (Petitioner-Appellant's Brief, at 50). The two issues are separate, and the mere fact that the District might be able to use the photographs to address the merits should not deprive it of its statutory right to timely actual knowledge of the claim so as to be able to conduct a timely investigation. The photographs do not eliminate the prejudice caused to the District by petitioner's failure to serve a timely notice of claim. This is because the photographs only show the condition right after the accident. The District will require much more information in order to mount an effective defense. The photographs do not provide information as to who placed the sign and where it was initially placed. The photographs do not provide information as to whether the sign was ever moved before petitioner's accident and, if so, how, and by whom. As the motion court properly noted, the prejudice issue is related to the District's ability to gather information about the creation of the sign and "about where and how to position it" (7). Because of petitioner's delay, the District was unable to - 74- "investigate the merits of the claim about the placement of the sIgn while information [was] likely to be available" (7). Due to petitioner's delay more than five months after expiration of the 90- day statutory period, and of more than eight months after the accident, it can be inferred that the District would be prejudiced in obtaining such information. That "inference of prejudice" is not rebutted by the mere availability of the police photographs. See McGinness v. City of New York, 113 A.D.3d 566 (1st Dep't 2014) (availability of records does not rebut "inference of prejudice" that arises from delay in serving notice of claim); Polanco v. New York City Housing Auth., 39 A.D.3d 320 (1st Dep't 2007) ("mere existence of records does not 'eliminate the inference that prejudice would accompany the passage of time"'). Petitioner's argument that the police photographs eliminate the District's prejudice incorrectly relies on cases where the municipal entity had actual knowledge of the claim based on more than just photographs. See Sosa v. City of New York, 124 A.D.3d 515 (1st Dep't 2015) (no prejudice where there was contemporaneous police investigation, accident reports, witness interviews and statements and photographs); Mounsey v. City of New York, 68 A.D.3d 998 (2d Dep't 2009) (no prejudice where City had several reports, aided report worksheet and witness statement in addition to photos); Caridi v. New York Convention Center, 47 A.D.3d 526 (1st Dep't 2008) (no prejudice where police investigated - 75 - accident, interviewed witnesses, prepared report and took photographs); Lozada v. City of New York, 189 A.D.2d 726 (1st Dep't 1993) (no prejudice where City had contemporaneous police report, witness identities and photographs of accident site); Rivera v. City of New York, 169 A.D.2d 387 (1st Dep't 1991) (no prejudice where plaintiff served timely notice of claim albeit with inaccurate location of accident site, where City had accident report and photographs and could have located condition if it investigated). G. Petitioner's Reliance on Cases that are Factually Distinguishable is Misplaced. Petitioner cites many cases on the prejudice issue. However, a very large number of these cases are distinguishable from the present case on their facts. This is because, in the cases cited by petitioner, the courts determined that the municipal entity had actual knowledge of the facts of the claim, thus negating the prejudice claim. Therefore, these cases do not support petitioner's position herein where the District had no actual knowledge of the facts of the claim. See Rojas v. NYCHH Corp., 127 A.D.3d 870 (2d Dep't 2015); Rivera v. City of New York, 127 A.D.3d 445 (lst Dep't 2015); Kellman v. Hauppauge U.F.S.D., 120 A.D.3d 634 (2d Dep't 2014); Rosario v. NYCHH Corp., 119 A.D.3d 490 (lst Dep't 2014); Lopez v. City of New York, 103 A.D.3d 567 (1st Dep't 2013); Mounsey v. City of New York, 68 A.D.3d 998 (2d Dep't 2009); Schwindt v. County of Essex, 60 A.D.3d 1248 (3d Dep't 2009); Jordan v. City of New York, 41 A.D.3d 658 (1 st Dep't 2007); Apgar - 76 - v. Waverly C.S.D., 36 A.D.3d 1113 (3d Dep't 2007); Andrew T.B. v. Brewster C.S.D., 18 A.D.3d 745 (2d Dep't 2005); Medley v. Cichon, 305 A.D.2d 643 (2d Dep't 2003); Welch v. Board of Educ. of Saratoga CSD, 287 A.D.2d 761 (3d Dep't 2001); Kurz v. N.Y.C.H.H. Corp., 174 A.D.2d 671 (2d Dep't 1991); Rechenberger v. Nassau County Medical Center, 112 A.D.2d 150 (2d Dep't 1985); Monge v. City of New York Dep't of Social Services, 95 A.D.2d 848 (2d Dep't 1983); Prude v. County of Erie, 47 A.D.2d III (4th Dep't 1975). Petitioner's assertion that the circumstances found in Rojas v. N.Y.C.H.H. Corp., 127 A.D.3d 870 (2d Dep't 2015), are the same as those in the present case is clearly incorrect. This is because the Rojas Court held that NYCHH had actual knowledge of the essential facts constituting the claim and, thus, found no prejudice to NYCHH. As the District had no actual knowledge in the present case, the Second Department's decision in the present case is in no way inconsistent with Rojas. Given the District's lack of actual knowledge of the essential facts, and petitioner's failure to demonstrate the lack of substantial prejudice, the Second Department properly affirmed the denial of petitioner's late notice of claim application. That exercise of its discretion should be affirmed. - 77- POINT V THE SECOND DEPARTMENT PROPERLY EXERCISED ITS DISCRETION IN DENYING THE LATE NOTICE OF CLAIM APPLICATION NOTWITHSTANDING PETITIONER'S ARGUMENTS AS TO REASONABLE EXCUSE. Petitioner argues that reasonable excuse for failure to serve a timely notice of claim existed in this case by virtue of his son's incapacity due to injury. There is no doubt that the minor petitioner sustained severe injuries as a result of the motor vehicle accident. Without in any way minimizing those injuries, it is submitted that they did not require that the late notice of claim application be granted. The motion court determined that petitioner had a reasonable excuse for the delay in serving the notice of claim (6). However, notwithstanding that finding, it correctly held that the "balance of relevant factors" warranted the denial of the application (8). The Second Department primarily relied upon the District's lack of actual knowledge in affirming the denial of the application of the application (85). Petitioner's pnmary argument as to reasonable excuse is that his son's injuries prevented timely pursuit of the claim. As an initial matter, the son was an infant on the accident date (55), and could not have pursued the legal claim on his own behalf regardless of his physical condition. However, it is clear that his father - 78 - promptly and immediately took steps to protect his son's legal interests. Counsel for petitioner states that less than one month after the accident, his office was acting to secure police records, indicating that he was retained well within the 90 day statutory period (33). There is no doubt that despite infancy and significant injuries, the petitioner father acted promptly to protect his son's legal interests. Therefore, neither infancy nor incapacity prevented petitioner from taking timely action to protect his son's rights. In arguing that the late notice of claim application should be granted because of his son's incapacity, petitioner relies on cases that are distinguishable from the present case. For example, petitioner cites Lopez v. County of Nassau, 120 A.D.3d 688 (2d Dep't 2014), where the late notice of claim application was granted. While the court found claimant's serious and incapacitating injuries to reasonably excuse his minimal delay, more significantly, it also found that the County acquired actual knowledge of the essential facts so as not to be prejudiced. In contrast, there was no actual knowledge in the present case. Petitioner also cites Haeg v. County of Suffolk, 30 A.D.3d 519 (2d Dep't 2006), and DeMolfetto v. City of New York, 216 A.D.2d 295 (2d Dep't 1995), where petitioners sustained serious injuries. In both cases though, the court found that, as there had been no change in the condition of the allegedly defective roadways, there would be nothing to impede investigation by the respondents, and - 79- that there would be no prejudice in permitting the claim to proceed. The facts herein are different. Petitioner also relies on Savelli v. City of New York, 122 A.D.2d 55 (2d Dep't 1986), in which the late notice of claim application was granted after remand and reconsideration. In its first decision, Savelli v. City of New York, 104 A.D.2d 943 (2d Dep't 1984), the Second Department found sufficient evidence of petitioner's incapacitation. However, it did not simply grant petitioner's application based upon incapacity/quadraplegia, but rather remanded the case for a determination based upon "[a]ll relevant factors." Savelli, 104 A.D.2d at 945. Therefore, the Second Department did not hold that incapacity alone was sufficient to grant the application. After reconsideration by the motion court, and the subsequent granting of petitioner's application, the Second Department affirmed. It held that, upon consideration of "all of the relevant factors set forth in the statute," the granting of the application was warranted. Savelli, 122 A.D.2d at 56. Clearly, Savelli does not stand for the proposition that severe incapacity alone requires the granting of a late notice of claim application. Savelli does not support petitioner's argument herein that the severity of injury required that his application be granted despite the District's lack of actual knowledge of the essential facts. - 80 - Although the law protects the rights of those who are incapacitated, mental or physical incapacity is only one of the factors to be considered under General Municipal Law §50-e (5). The municipal entity's actual knowledge of the essential facts constituting the claim is given the ~reatest weight, see Felice v. Eastport/South Manor C.S.D., 50 A.D.3d 138, 147 (2d Dep't 2008); Iacone v. Town of Hempstead, 82 A.D.3d 888, 889 (2d Dep't 2011), and where such actual knowledge has not been demonstrated, it is error to grant the late notice of claim application. See Heffelfinger v. Albany lnt'l Airport, 43 A.D.3d 537 (3d Dep't 2007). This approach was taken in Gillum v. County of Nassau, 284 A.D.2d 533 (2d Dep't 2001), where petitioner's late notice of claim application was denied even where the court accepted her claim that she was incapacitated by her injuries. This was because petitioner had failed to establish that the County had actual notice within the statutory period, with the result that it was unable to conduct a timely investigation. Consistent with that reasoning, proof of incapacitating injuries results in the granting of late notice of claim applications where there is also a showing that the municipal entity had actual knowledge of the facts constituting the claim. See Nunez v. City of New York, 307 A.D.2d 218 (1st Dep't 2003); Morano v. County of Dutchess, 160 A.D.2d 690 (2d Dep't 1990); Fahey v. County of Nassau, 111 - 81 - A.D.2d 214 (2d Dep't 1985); Flynn v. City of Long Beach, 94 A.D.2d 713 (2d Dep't 1983). Where there is no actual knowledge of the essential facts, the presence of one of the other factors such as incapacity is not necessarily determinative of this late notice of claim application. See Dell'Italia v. Long Island Rail Road Corp., 31 A.D.3d 758,759 (2d Dep't 2006); Bullard v. City of New York, 118 A.D.2d 447 (1 st Dep't 1986). Neither does petitioner's difficulty in obtaining police investigation records provide an excuse sufficient to overcome the District's lack of actual knowledge of the essential facts of the claim. See Chattergoon v. New York City Housing Auth., 161 A.D.2d 141 (1st Dep't 1990), aff'd, 78 N.Y.2d 958 (1991). Therefore, even given the incapacity of the student petitioner herein, the Second Department did not err in denying the late notice of claim application given the absence of any evidence that the District acquired timely actual knowledge of the facts constituting the claim. Further, despite the student's significant injuries, he was not left unprotected in this case as his father, who has instituted these legal proceedings on his behalf, has acted diligently on his behalf. A. Petioner's Discovery Rule Argument Should Be Rejected. Petitioner argues that the 90-day statutory period for the service of the notice of claim should not have begun to run during the time when he was unaware that - 82 - he might have legal rights against the District (Petitioner-Appellant's Brief, at 65066). In essence, petitioner is arguing that a discovery rule should be applied to the General Municipal Law 50-e requirement. However, in Pierson v. City of New York, 56 N.Y.2d 950 (1982), addressing the provisions of General Municipal Law §50-e, this Court specifically rejected the plaintiffs contention that the statutory period "did not begin to run until she discovered the fact that her building had been destroyed." ld. at 956; N.M. v. Westchester County Health Care Corp., 10 A.D.3d 421 (2d Dep't 2004) (on late notice of claim application, there is no "delayed discovery" rule to toll statute of limitations for claim based on sexual abuse); Kitonyi v. Albany County, 128 A.D.2d 1018 (3d Dep't 1987) (granting motion to dismiss for failure to serve timely notice of claim and timely commence action where court refused to apply discovery accrual rule). This is consistent with §50-e itself which requires compliance within 90 days "after the claim arises," making no provision for a discovery rule. General Municipal Law §50-e (1) (a). It is consistent with General Municipal Law §50-i (1) which provides that an action shall be commenced within one year and 90 days "after the happening of the event upon which the claim is based," and which also contains no provision for a discovery rule. General Municipal Law §50-i (1); Klein v. City of Yonkers, 53 N.Y.2d 1011 (1981) (§50-i "limitations period begins to run - 83 - upon the happening of the event, irrespective of when the action accrued"); Doyle v. 800 Inc., 72 A.D.2d 761 (2d Dep't 1979) (despite plaintiff's claim of being unaware of city's negligence, "under section 50-i the period of limitations is not tolled pending discovery by the plaintiff of his injuries or his damages"). Therefore, both the statutory language of §50-e and §50-i and related cases demonstrate that there is no discovery rule applicable to the present case. Neither has petitioner identified any statute providing a discovery rule in a situation such as the present one. In contrast, petitioner's argument for a discovery rule relies on cases of questionable applicability. For example, in Sexstone v. City of Rochester, 32 A.D.2d 737 (4th Dep't 1969), a case involving the alleged negligent issuance of a certificate of occupancy for a building with violations, the court stated that the notice of claim was timely filed within 90 days "after the violations were discovered." Id. at 737. However, it also stated that the 90 days should be measured "not from the time of the negligent act but from the date the negligent act produced injury to the plaintiffs." Id. In Sexstone, this appears to mean that the notice of claim was served more than 90 days after the certificate was negligently issued, but within 90 days of discovering the building violations - which was when the negligent act injured plaintiffs. It does not appear that Sexstone supports the type of discovery rule that petitioner is advocating. - 84- In McGreevy v. Rensselaer County Sheriff, 152 Misc.2d 127 (Sup. Ct. Rensselaer Cty. 1991), cited by petitioner, it was held that "under the particular circumstances" of the case, the notice of claim served within 90 days of discovery of defendant's misrepresentations and the conversion of money was timely. McGreevy, 152 Misc.2d at 131. However, the court noted that the general rule when a plaintiff's personal or property rights are invaded is that "lack of knowledge of the wrong does not toll the running of the limitations period." Id. at 130. Thus, McGreevy does not support petitioner's discovery argument in the present case where there were no misrepresentations by the District. Petitioner's reliance on Cassidy v. County of Nassau, 84 A.D.2d 742 (2d Dep't 1981), is misplaced as the County repeatedly refused to provide plaintiff with a copy of medical records and plaintiff's delay in serving the notice of claim was deemed solely attributable to the failure to furnish the records. Cassidy did not tum on a discovery analysis. In Damico v. Onondaga County Water Auth., 36 Misc.2d 158 (Sup. Ct. Onondaga Cty. 1962), cited by petitioner, the notice of claim was held timely where, despite earlier leaks in the water pipes in 1959, plaintiffs did not actually sustain or observe damage until 1960. As there was no cause of action until their premises was damaged, plaintiffs could not serve the notice of claim until such - 85 - damage occurred and was discovered. Damico does not support the type of discovery rule for which petitioner is advocating. Petitioner's reliance on Distel v. County of Ulster, 107 A.D.2d 994 (3d Dep't 1985), is misplaced, as the court merely noted that the requirements of General Municipal Law §50-e "may have been tolled" by defendant's failure to inform plaintiffs that portions of their decedent's remains had been lost, despite repeated inquiries for information. Similarly, Cacucciolo v. City of New York, 127 Misc.2d 513 (Civil Court of the City of New York 1985), held the notice of claim to be timely given the City's timely actual knowledge of its own wrongdoing. Language in Cacucciolo that the claim arises and the statutory period begins to run "from the date of discovery of the injury, rather than the date of injury itself' is clearly dicta. B. Petioner's Argument Based on C.P.L.R. §208 Should Be Rejected. Petitioner compares the toll provided to those under the disability of infancy or insanity by C.P.L.R. §208 to how General Municipal Law §50-e handles infancy and mental or physical incapacity. Petitioner's analysis in this regard is incorrect. In Cohen v. Pearl River U.F.S.D., 51 N.Y.2d 256 (1980), this Court addressed whether the 1976 amendments to General Municipal Law §50-e could be applied retroactively to a case brought on behalf of an infant petitioner, holding that it could under the particular facts of that case. The Cohen Court further concluded that where the time to commence an action on the claim is tolled under - 86 - C.P.L.R. §208, "there will be a concomitant tolling of the time during which [a] late notice of claim may be served." Id. at 263. In rejecting arguments against this determination, this Court wrote that the amendment merely enlarged the time within which the court could grant an infant leave to serve a late notice of claim. Id. at 263. Once that authority was expanded, it remained necessary for the Legislature to furnish a set of guidelines for the court to use in determining whether it should exercise its discretion in favor of a particular claimant. In this connection, the Legislature quite reasonably indicated that the infancy or other disability of the claimant is an appropriate factor to be taken into account when an application for an extension is made pursuant to section 50-e (subd. 5) ... Of course, it goes without saying that the mere availability of the toll does not in itself mandate that an extension be granted in every case involving an infant or an individual having another disability covered by C.P.L.R. 208. The decision to grant or deny an extension under section 50-e (subd. 5) is still purely a discretionary one, and the courts remain free to deny an application for an extension in the interests of fairness to the potentially liable public corporation. The incorporation of the toll . . . merely confers upon the courts the authority to entertain the otherwise untimely applications of disabled claimants; it does not, however, dictate that such applications automatically be granted. Id. at 265-66. Therefore, while the C.P.L.R. §208 toll expands the time within which a court can consider the application of an infant or someone under a physical or mental incapacity, it does not mandate that all such applications be granted. To the - 87 - extent that petitioner makes such an argument herein, that position has already been rejected by this Court in Cohen. Clearly, the primary purpose of the General Municipal Law §50-e notice of claim requirement is to provide the public corporation with timely notice so as to protect against fraudulent and stale claims, and to allow for early investigation while the facts are still fresh. Adkins v. City of New York, 43 N.Y.2d 346, 350 (1977). Although infancy and incapacity are factors to be considered, they do not require the granting of an application where to do so would be unfair to the municipal entity due to the lack of timely actual knowledge of the essential facts of the claim. To hold to the contrary would undercut the very purpose of the statute. In that sense, General Municipal Law §50-e (5) and C.P.L.R. §208 do not have a common purpose as petitioner claims. C.P.L.R. §208 does not require that primacy be given to infancy or other disability when deciding a late notice of claim application. Given the District's lack of actual knowledge of the essential facts, the Second Department properly affirmed the denial of petitioner's late notice of claim application notwithstanding petitioner's arguments as to reasonable excuse. That exercise of its discretion should be affirmed. - 88 - CONCLUSION For the foregoing reasons, the Second Department properly exercised its discretion to affirm the order denying petitioner's application under General Municipal Law §50-e (5) for leave to deem a late notice of claim timely served. The evidence demonstrated that the District had no timely actual knowledge of the essential facts constituting petitioner's claim. Mere knowledge that one of its students had been injured when hit by a car while crossing a public street off the District's property on a Saturday evening did not provide any notice that that occurrence was causally connected to any negligence of the District, including the placement of a sign advertising a school play near the adjacent comer. Such actual knowledge is the factor to be given the greatest weight pursuant to General Municipal Law §50-e (5) because it serves the primary objective of the statute which is to assure the public corporation adequate opportunity to investigate while information is still fresh and available. The lack of such actual knowledge prejudiced the District. The Second Department has acted within the perimeters of reason in applying the factors set forth in General Municipal Law §50-e (5), and that exercise of its discretion should not be disturbed. Therefore, the Order of the Appellate Division, Second Department should be affirmed. Dated: February 26,2016. By: CHRISTINE GASSER - 89-