In the Matter of Raymond Newcomb et al., Appellants,v.Middle Country Central School District, Respondent.BriefN.Y.November 15, 2016.t!etu ~ork ~tate ~ourt of ~peal~ In the Matter of the Claim of RAYMOND NEWCO~lB, Individually and as Father and Natural Guardian of AUSTIN NEWCOMB, Pelitioners-Appellams, -against- MIDDLE COUNTRY CE\ITRAL SCHOOL DISTRICT, ResJmndenl-Revmndenl. 1\'lo. No.: 2016-676 Suffolk County Clerk's No.: 31807/13 Appellate Division, Second Department Docket No. 2014-05995 AMICUS BRIEF ON BEHALF OF PETITIONERS Michael G. Bersani, Esq. MICHAELS & SMOLAK, P.C. Aflorneysfor Amicus Curiae New Vork S1a1e Academy of Trial T,awyers 17 East Genesee Street, Suite 401 Auburn, New York 13021 Telephone: {315) 253-3293 TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................................................... ii PRELIMIN"ARY STATEMENT ................................................................................................ vi INTERESTS OF THE AMICUS ............................................................................................... vii QUESTION PRESENTED .............. : ........................................................................................ viii STATEMENT OF FACTS ............................................ : .............................................................. 1 DISCUSSION ................................................................................................................................ 3 POINT I: THE SUPREME COURT AND THE SECOND DEPARTMENT ERRED IN FAILING TO PLACE THE INITIAL BURDEN OF PROVING PREJUDICE DUE TO THE DELAY IN SERVING THE NOTICE OF CLAIM ON THE SCHOOL DISTRICT ................................................................................................................................... 3 A. History of General Municipal Law §50-e(S) ................................................................ 3 B. Case Law Addressing the Burden of Proof to show ''substantial prejudice" or lack thereof. ···'···· .................................................................................................................. 8 C. Supreme Court's and the Appellate Division's "Presumption" of Prejudice and Placement of the Burden on Petitioner to Show Lack of Prejudice was an Abuse of Discretion ........................ : ............................................................................................ 17 D. The Respondent did not Meet Its Burden of Showing Prejudice ................................ 21 E. Petitioner Produced Evidence of Lack of Prejudice ................................................... 22 F. Conclusion on the Issue ofPrejudice ............................. ~············································ 24 POINT II: THE ERROR WAS NOT HARMLESS BECAUSE IT SKEWED THE EQUITABLE FACTORS TO BE CONSIDERED UNDER GENERAL MUNICIPAL LAW 50-E(5) IN FAVOR OF THE SCHOOL DISTRCIT ........................................................................... 25 CONCLUSION ........................................................................................................................... 26 1 TABLE OF AUTHORITIES Cases Ansong v New York City, 308 AD2d 333 (1st Dept 2003) ............................................................ 10 Bazile v City ofNew York, 94 AD3d 929 (2012) ............................................................................ 9 Bensen v Town of Islip, 99 AD2d 755 (2nd Dept 1984) ...................................................... 1, 14, 25 Brown v City of Buffalo, 100 AD3d 1439 (4111 Dept 2012) ........................................................... 15 Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139 (1974) ......................................... 4 Caminero v New York City Health and Hospitals Corp., 21 AD3d 330 (1st Dept 2005) ............... 9 Caridi v New York Convention Center Dperating Corp., 47 AD3d 526 (1st Dept 2008) ............. 22 Casale v City of New York (95 AD 3d 744 (1st Dept 2012) ........................................................... 11 Castaneda v Nassau Health Care Corporation, 89 AD3d 782 (2"d Dept 2011) ............................ 9 City of Rye v Rodriguez 44 NY2d 398 (1978) ...................................................................... 7, 8, 20 . ili Dalton v Akron Central Schools, 107 AD 3d 1517 ( 4 Dept 20 13) ................................................ 9 DeVivo v Town of Carmel, 68 AD3d 991 (2"d Dept 2009) ........................................................... 13 Felice v Eastport/South Manor CS.D., 50 AD3d 138, (2nd Dept 2008) .................................. 9, 13 Goodwin v New York City Hous. Auth, 42 AD 3d 63 (1st Dept 2007) ........................................... 12 Hall v Madison-Oneida County Board of Cooperative Education Services, 66 AD 3d 1434 ( 4ili Dept 2009) ................................................................... : ............................... 15 Herman v Village of Chester, 125 AD2d 469 (2nd Dept 1986) ....................................................... 8 Hill v New York City, 68 AD3d 866 (2"d Dept 2009) ..................................................................... 1 In re Hubbard, 71 AD3d 1313 (3rd Dept 2010) ............................................................................ 22 Jordan v City ofNY, 41 AD3d 658 (2"d Dept 2007) ..................................................................... 12 Kavanaugh v Memorial Hospital and Nursing Home of Greene County, 11 126 AD2d 930 (3rd Dept 1987) .......................................................... , .................................... 8, 14 Kellman v Hauppauge Union Free Sch. Dist., 120 AD3d 634 (2nd Dept 2014) ........................... 12 Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 (2001) ....................................................... 16 Leeds v Port Wash. Union Free Sch. Dist., 55 AD 3d 734 (2nd Dept 2008) .................................. 12 Lozada v City ofNewYork, 189 AD2d 726 (1st Dept1993) .......................................................... 22 Manuel v Riverhead Central School District, 116 AD3d 1048 (2nd Dept 2014) .......................... 10 Matter ofDeMolfetto v City of new York, 216 AD2d 295 (2nd Dept 1995) .................................. 14 Matter of Destine v City ofNew York, Ill AD3d 629 (2013) ........................................................ 9 Matter ofHaeg v County ofSuffolk, 30 AD3d 520 (2nd Dept 2006) ............................................ 14 Matter of Hayes v Del.-Chenango-Madison-Otsego Bd. ofCoop. Educ. Servs., 79 AD3d 1405 (3rd Dept 2010) ····································································'······························ 14 Matter of Kurz v New York City Health and Hasps. Corp., 174 AD2d 671 (2nd Dept 1991) ................................................................................................... 12 Matter of Lopez v City of New York, 103 AD 3d 567 (1st Dept 2013) ........................................... 11 Matter of Martin v School Bd. of Union Free Dist. No. 28, 301 NY 233 (1950) ........................... 4 Matter of Mounsey v City of NY, 68 AD 3d 998 (2nd Dept 2009) .................................................. 22 Matter of Rivera v City of New York, 127 AD3d 445 (1st Dept 2015) .......................................... 11 Matter of Schwindt v County of Essex, 60 AD 3d 1248 (3rd Dept 2009) ....................................... 12 Matter ofWelch v Board ofEduc. Of Saratoga Cent. School Dist., rd 287 AD2d 761 (3 Dept 2001) ................................................................................................... 13 McGinness v City ofNew York, 113 AD3d 566 (1st Dept 2014) .................. ~ ............................... 11 McLaughlin v North Colony Central School District, 269 AD2d 658 (3rd Dept 2000) ................ 10 Mitchell v Town of Greenburgh, 96 AD 3d 852 (2nd Dept 2012) .................................................. 13 Newcomb v Middle Country Central School District, 128 AD3d 701 (2nd Dept 2015) ........... 2, 18 Padgettv City ofNew York, 78 AD3d 949 (2nd Dept 2010) ........................................................... 1 111 Plaza ex. Rel. Rodriguez v New York Health and Hospitals Corporation, 101 AD3d 558 (1st Dept 2012), aff'd on other ground, 21 NY3d 983 (2013) ............................ 19 Randolph v Westchester Medical Center, 122.AD3d 822 (2nd Dept 2014) .............. : ................... 13 Rechenberger v Nassau County Medical Center, 112 AD2d 150 (2nd Dept 1985) .................. : ..... 8 Rojas v New York City Health And Hospitals Corporation, 127 AD3d 870 (2nd Dept 2015) ...... 26 · nd Ruffino v City of New York, 57 AD3d 550 (2 Dept 2008) .......................................................... 22 Russo v City of New York, 258 NY 344 (1932) .............................................................................. 4 Sandak v Tuxedo Union Sch: Dist., 308 NY 226 (1954) ............................................................ 3, 4 Santana v Western Regional Off-Track Betting Corporation, 2 AD3d 1304 (4th Dept 2003) ..... 10 Shaul v Hamburg Central School District, 128 AD3d 1389 (4th Dept 2015) ............................... 15 Sosa v City ofNew York, 124 AD3d 546 (1st Dept 2015) ....................................................... 11, 22 Strobel v County of Lewis, 147 AD2d 948 (4th Dept 1989) ............................................................ 8 Tara v County of Otsego, 12 AD3d 984 (3rd Dept 2004) .......................................................... 9, 14 Terrigino v Village of Brockport, 88 AD3d 1288 (4th Dept 2011) ............................................... 15 Thomas v New York City Housing Authority, 132 AD3d 432 (1st Dept 2015) ............................. 12 Underwood v New York City Housing Authority, 177 AD2d 698 (2nd Dept 1991) .............................................................................................................................................. 1, 14, 26 Valila v Town of Hempstead, 107 AD3d 813 (2nd Dept 2013) ..................................................... 13 Vargas v New York City Housing Authority, 232 AP2d 263 (1st Dept 1996) .............................. 11 Williams v Nassau County Med. Ctr. 6 NY 3d 531 (2006) .................................................... passim Williams v Nassau County Med. Ctr., 229 AD2d 114 (2nd Dept 1997), qfj"'d 6 NY3d 531 (2006) ....................................................................................................... 13, 15 Winter v City of Niagara Falls, 190 NY198 (1907) .... : .................................................................. 4 Statutes CPLR 306-b .................................................................................................................................. 16 IV General Municipal Law § 50-e(S) ........................................................................................ Passim L.1959, ch. 814 ............................................................................................................................ 3, 7 v PRELIMINARY STATEMENT The New York State Academy of Trial Lawyers ("Academy") submits this Amicus Curiae Brief pursuant to permission granted by this Court in an Order entered on August 25, 2016 in support of the appeal of Petitioner-Appellant ("Petitioner") from the Order of the Appellate Division Second Department dated May 6, 2016, affirming the Order of the Supreme Court, Suffolk County (Tarantino, Jr., J.) dated May 13, 2014, denying Petitioner's application pursuant to General Municipal Law§ 50--e(5) for ieave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc. The Academy asserts that it was error for Supreme Court to deny the Petitioner's application to late-serve the Notice of Claim, and it was further error for the Appellate Division to affirm the Order denying said application. Both Courts abused their discretion in denying said application because the factors to be considered under General Municipal Law were improperly weighed and considered. Vl INTERESTS OF THE AMICUS The Academy was formed in 2004. Its current members number approximately 2300 and include plaintiff and defense attorneys, members of the judiciary, non-judicial government employees, law professors, law clerks, law secretaries, paralegals and law students. The Mission Statement of the Academy provides that it "maintains a strong commitment to protect, preserve and enhance the civil justice system, while working to rebuild and improve the image of our profession." We believe it is our collective responsibility as attorneys to work to protect, preserve, and enhance the civil justice system and provide equal access to justice for all, in accordance with our mission. It is the Academy's position that the civil justice system will be enhanced and greater justice will be done should this Court place the initial burden of showing prejudice from the delay in serving a late notice of claim on the public corporation rather than simply presuming prejudice or placing the burden of proof on the Petitioner, at least in cases where the delay in . serving the notice of claim is relatively short, as here, Vll QUESTION PRESENTED 1. Whether the Second Department erred in "presuming" or "inferring" substantial prejudice to the School District from the mere passage of time - five months -- rather than requiring the District to submit evidence of prejudice? ANSWER: Yes. In cases where the delay is relatively short, as here, the public corporation should have the burden of showing prejudice caused by the delay in serving the notice of claim. It was an abuse of discretion for the Court to "presume" prejudice from the mere passage of five months' time. 2. Was the error harmless? ANSWER: No. If the Court had found there was no prejudice to the District, as it should have, then the weight of the factors to be considered under General Municipal Law § 50-e(S) would have tipped in Petitioner's favor. Vlll STATEMENT OF FACTS Amicus herein relies on the Statement of Facts contained in the Plaintiffs Brief. Amicus assumes, however, arguendo, that the School District did not have knowledge of all the essential facts of the Claim until five months past the ninety-day statutory period.1 The order of the Supreme Court, Suffolk County (Tarantino, Jr., J.) dated May 13, 2014, denied Petitioner's application pursuant to General Municipal Law§ 50--e(S) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc. The application was brought only five months after the statutory ninety days had expired. In his Decision, Judge Tarantino concluded that the District was unable to "investigate the merits of the claim about the placement of the sign while information [was] likely to be available 11 (7). Judge Tarantino did not rely on any proof that the evidence was unavailable or had gone stale. No such proof was offered. Rather than proof, Judge Tarantino relied on his understanding of the burdens of proof in deciding an application to late-serve the notice of claim against a public corporation. According to Judge Tarantino, the public corporation was not required to present any proof at all 1 Petitioners have advanced a compelling argument that the District did have such knowledge, and Amicus would be hard pressed to improve upon those arguments already so persuasively advanced. Yet it is Amicus' position that, even if the public corporation did not have timely actual knowledge of the facts of the claim, it was an abuse of discretion to deny the petition to late-serve the notice of claim (see, Bensen v Town of Islip, 99 AD2d 755 [2nd Dept 1984] [Permission to late-serve granted even where pubic corporation had no timely actual knowledge of the facts of the claim and even though the delay in serving the application to late-serve the claim was eleven months, where petitioner was severely disabled and respondent "made no showing of prejudice"]; Underwood v New York City Housing Authority, 177 AD2d 698 [2nd Dept 1991] [Permission to late-serve granted to lead-poisoned infant even though respondent had no actual timely knowledge of the facts of the claim and even though the delay in serving the petition to late-serve the claim was 14 months, given Petitioner's infancy and the lack of prejudice to the respondent]). Thus, Amicus focuses this Brief on how this Court should decide an important evidentiary rule oflaw that is likely to affect other claimants in future applications to late-serve notices of claims upon public corporations pursuant to General Municipal Law § 50-e(5), namely, who has the burden of proof regarding the "substantial prejudice" factor? 1 of prejudice be~ause "the burden is on the [petitioner], not the [respondent]2 to demonstrate that there will be no prejudice by the delayed filing" (7). Judge Tarantino further speculated that "matriculation and graduation of students and personnel changes presumably hinder the school District's ability to gather information about the creation of the sign and the decision about where and how to position it" (7). The Court required no proof from the District that matriculation and graduation of students and personnel changes had hindered the District's ability to investigate the accident, and the District provided none. The Second Department, in affirming the Supreme Court's Order, likewise reasoned that the petitioner had the burden of showing a lack of' prejudice rather than the District having the burden of showing prejudice: The petitioners failed to demonstrate that their delay in serving a notice of claim would not substantially prejudice the School District's ability to defend against the claim on the merits. Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the petition and dismissing the proceeding" (Newcomb v Middle Country Central School District, 128 AD3d 701 [2nd Dept 2015] [emphasis added]). 2 The Court actually wrote "Respondent, not the Petitioner" (sic), but this was clearly a typographical error. This is clear both from the cases the Court cited to (Padgett v City of New York, 78 AD3d 949 [2nd Dept 2010] ["the petitioners have not met their burden of establishing that the City will not be prejudiced in its defense on the merits should leave be grruited and the result it reached"]; Hill v New York City, 68 AD3d 866 [2nd Dept 2009] ["the petitioner failed to establish that the 1 0--month delay after the expiration of the 90--day statutory period would not substantially prejudice the appellant in maintaining a defense on the merits"]) and the result the Court reached. 2 DISCUSSION POINT I THE SUPREME COURT AND THE SECOND DEPARTMENT ERRED IN FAILING TO PLACE THE INITIAL BURDEN OF PROVING PREJUDICE DUE TO THE DELAY IN SERVING THE NOTICE OF CLAIM ON THE SCHOOL DISTRICT. A. History of General Municipal Law §50-e(S). The key issue in this case is, who has the burden of proof regarding the factor of "substantial prejudice" within the context of a General Municipal Law §50-e(5) application to serve a late notice of claim? In deciding the issue, the Court is called upon to examine the history and purpose of said Statute. Amicus contends herein that the liberalizing purposes of the 1976 Amendments to the Statute support the view that the burden of showing prejudice should rightfully be on the public corporation, at least where the delay in serving the notice of claim is relatively short and the other factors weigh heavily in favor of the petitioner (as here). 1. Pre-1976 Notice-of-Claim Statute Before September 1, 1976 subdivision 5 of Section 50-e of the General Municipal Law read in pertinent part: 5. The court, in its discretion, may grant leave to serve a notice of claim within a reasonable time after the expiration of the time specified in subdivision one of this section (i. e., 90 days) in the following cases: (1) Where the claimant is an infant, or is mentally or physically incapacitated, and by reason of such disability fails to serve a notice of claim within the time specified; (2) where a person entitled to make a claim dies before the expiration of the time limited for service of the notice; or (3) where the claimant fails to serve a notice of claim within the time limited for service of the notice by reason of his justifiable reliance upon settlement representations made in writing by an authorized representative ofthe party against which the claim is made or of its insurance carrier. Application for such leave must be made within the period of one year after the happening of the event upon which the claim is based, and shall be made prior to the 3 commencement of an action to enforce the claim, upon affidavit showing the particular facts which caused the delay, accompanied by a copy of the proposed notice of claim (L.1959, ch. 814). As this Court observed in Sandak v Tuxedo Union Sch. Dist. (308 NY 226 [1954]), the requirement of notice to a municipality was intended to provide "safeguards devised by the law to protect municipalities against fraudulent and stale claims for injuries to person and property" but that "far too often technicalities in this field have prevented the disposition of honest claims on their merits" (Sandak, supra, at 232, quoting, 1944 Report of the Judicial Council, recommending adoption of Section 50-e of the General Municipal Law [Tenth Annual Report of NY Judicial Council, 1944, p. 265]). Under this fontter version of the Statute, the application for permission to serve a late notice of claim was required to be made within "one year after the happening of the event upon which the claim is based", and the tolls and extensions contained in CPLR article 2 were inapplicable to this limitations period (see, Matter of Martin v School Bd. of Union Free Dist. No. 28, 301 NY 233 [1950]; Russo v City of New York, 258 NY 344, 348-349 [1932]; Winter v City of Niagara Falls, 190 NY198 [1907]). Under this pre-1976 version of the Statute, the primary ground for granting the application to late-serve the notice of claim was disability arising out of infancy or mental or physical incapacity. Additionally, a court could permit late filing when the would-be claimant had died before the expiration of the 90-day period or had placed justifiable reliance upon settlement representations made in writing by an authorized representative or insurance carrier for the party against whom the claim was to be made. 4 This Court deemed this prior version of the Statute unduly harsh. In Camarella v East Irondequoit Cent. School Ed. (34 NY2d 139, 142 [1974]) this Court asked the Legislature to consider removing the harsher aspects of the statute "in order that a more equitable balance may be achieved between a public corporation's reasonable need for prompt notification of claims against it and an injured party's interest in just compensation" ( Camarella v East Irondequoit Cent. SchC!ol Bd., supra, at pp. 142-143) and suggested that the Statute "should provide a greater discretion to give relief from its requirements" ( Camarella v East Irondequoit Cent. School Ed., supra, citing, Matter of Murray v City ofNew York, supra, at 121). 2. Comprehensive Study of the Statute with Recommended Changes In the wake of Camarella, the Office of Court Administration commissioned a comprehensive study, undertaken by Professor Paul S. Graziano of St Johns' University School of Law. On the basis of that Study, the Judicial Conference recommended certain changes in section 50--e. It noted that '"the functional purpose of the notice of claim is to protect a public corporation against stale or unwarranted claims and to enable it to investigate claims timely and efficiently" (Report, at pp. 286, 302) and that ''the tightly woven provisions of the present law governing leave to serve a late notice of claim (subd. 5) should be loosened, keeping in mind the functional purpose of the notice, stated above, and the need to balance the interests of the public and of the injured person" (Report, at p. 287). The Judicial Conference summarized its recommendations as follows: A more equitable balance has been sought by (1) breathing greater flexibility into section 50-e without defeating its basic purpose, (2) codifying and clarifying existing decisional law on troublesome questions, and (3) overruling decisional law and repealing or amending statutes that do not reflect the basic purpose of notice of claim statutes or that have led to unjust results. The added flexibility in section 50-e is attained primarily by enlarging the period within which a late notice of claim may be filed, 5 not to exceed the limits set by a statute of ,limitations, and articulating some of the factors which should guide the court's discretion in permitting a late filing. It is intended that older judicial decisions construing the provisions of section 50-e rigidly and narrowly will be inapplicable as a result of these remedial amendments, which will enable the courts to apply these provisions in a more flexible manner to do substantial justice." (Report at p. 288). General Municipal Law § 50-e(5), as amended, was intended to "reflect a substantial change of policy in respect to applications for leave to file late notices of claim, giving the court greater flexibility in exercising discretion in this area." The Report recommended that one factor to be considered in denying or granting permission to late-serve a notice of claim was whether the delay caused "substantial prejudice" to the public corporation in maintaining its defense on the merits (Report, at pp. 300-303). 3. Current {1976) Version of the Statute The Legislature responded to the Judicial Conference Report by enacting L.1976, ch 745, § 2 (now General Municipal Law§ 50--e [5]), which reads its entirety: 5. Application for leave to serve a late notice. · Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. 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 6 serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits. (General Municipal Law§ 50-e [5]). The amendment to Section 5 thus extended the time period during which a court might allow late filing of such claims and amplified the "factors" a court could consider in deciding whether to grant the application. These new factors included not only those enumerated in the Statute, but "all othet relevant facts and circumstances" (General Municipal Law, § 50-e[5]). 4. History of Court of Appeals Interpretation of the 1976 Amendments Soon after the 1976 Amendments took effect, this Court had occasion to examine them in City of Rye v Rodriguez 44 NY2d 398 (1978). There, the Court had to decide whether to apply the Amendments retrospectively, an issue that does not concern the Court today. In so doing, however, this Court reflected on the overall purpose of the Amendments, which does concern the Court today: It has been said that 'the only legitimate purpose served by the notice' is prompt investigation and preservation of evidence of the facts and circumstances out of which claims arise (21st Annual Report of NY Judicial Conference, 1976, p. 302; [citations omitted]. The greater flexibility introduced by the amendments appears designed to encourage greater fairness in achieving that goal. Our original notice of claim statutes attempted to serve this purpose by imposing an unbending time bar on late claims [citation omitted]. Succeeding legislation gradually eased this strictness (L.1945, ch. 694; L.l959, ch. 814; L.1976, ch. 745), but, as the nature of the exceptions listed in section 50-e until its most recent amendment attests, these were not functionally related to the achievement of its primary goal. Instead, they were directed only toward mitigating the hardship imposed on particular categories of claimants. In contrast, the 1976 amendments no longer confine the range of the discretion entrusted to courts to rigid classifications (City of Rye v Rodriguez, supra, at 399 [emphasis added]). 7 Thus, the most recent amendments to the Statute (1976) reflect a legislative attempt to make the notice-of-claim requirements more just and fair to injured claimants all while preserving the core purpose of the Statute, which is to ensure that the public corporation has an opportunity to properly investigate and defend claims. B. Case Law Addressing the Burden of Proof to show "substantial prejudice" or lack thereof. 1. General Discussion Regarding Burdens of Proof One of the key factors courts must consider in deciding whether to grant an application to late-serve a notice of claim is whether the public corporation has suffered "substantial prejudice" (General Municipal Law § 50-e[5]). This Court has not specifically addressed the burdens of proof regarding the "substantial prejudice" factor in the context of General Municipal Law § 50- e( 5). As discussed below, the appellate divisions have done so, but have reached disparate conclusions. It is amicus curiae's contention that some of the Appellate Division decisions in this regard have been thwarting the liberal purposes of the 1976 Amendments to the notice-of- claim Statute by either "presuming" prejudice from the passage of time alone, even if the delay is relatively short, or by requiring the applicant to demonstrate an absence of prejudice to the public corporation when the applicant is often in no position to gain access to such evidence. The better rule, the one that clings most closely to the intention of the modem Statute, is to place the burden on the public corporation of proving prejudice from the delay, at least where the delay is relatively short. Before taking this discussion any further, it is worth noting that, where a Court finds that a public corporation has actual knowledge of the essential facts of the claim within ninety days or a reasonable time thereafter, the application to late-serve the notice of claim is almost without 8 exception granted. As this Court noted in City of Rye, "even when a public body has had no formal alert that a claim in fact will be brought, actual knowledge of the facts within 90 days or shortly thereafter makes it unlikely that prejudice will flow from a delay in filing ... " (City of Rye v Rodriguez, supra, at 399; see, Herman v Village of Chester, 125 AD2d 469 [2nd Dept 1986] ["The village's actual knowledge makes it unlikely that it would be prejudiced by the late serving of the notice of claim"]; Kavanaugh v Memorial Hospital and Nursing Home of Greene County, 126 AD2d 930 [3rd Dept 1987] [public corporation did not show "any prejudice to itself as a result of the delay", and given [its] actual notice, it is unlikely that any prejudice could be established"]; Rechenberger v Nassau County Medical Center, 112 AD2d 150 [2nd Dept 1985] . ili [same]; Strobel v County of Lewis, 147 AD2d 948 [4 Dept 1989] [same]). Thus, all four Departments almost invariably grant applications to late-serve notices of claim where the public corporation had timely notice of the essential facts of the claim, regardless of whether the other key factors (reasonable excuse for the delay, infancy, disability, etc.) weigh for or against the petitioner (see, e.g., Caminero v New York City Health and Hospitals Corp., 21 AD3d 330 [1st Dept 2005]; Castaneda v Nassau Health Care Corporation, 89 AD3d 782 [2nd Dept 2011]; Tara v County of Otsego, 12 AD3d 984 [3m Dept 2004]; Dalton v Akron Central Schools, 107 AD3d 151 7 [ 4 ili Dept 2013]). This result is not surprising since, if the public corporation has had timely actual knowledge of the essential facts, the public corporation almost certainly has experienced no prejudice from any delay in receiving the notice of claim. In other words, where the public corporation received timely actual knowledge of the essential facts of the claim by some informal means rather than by way of an official and timely served notice of claim, the untimeliness of the formal notice is a mere technicality not worthy of denying the application to late-serve the notice of claim. 9 Thus, the other factors the court must consider in deciding whether to grant an application to late serve a notice of claim are generally only scrutinized when the public corporation has not had timely knowledge of the essential facts of the claim. The other most important factors courts consider are: (1) whether the claimant is an infant, or is mentally or physically incapacitated (and additionally whether there was a "nexus" between the infancy/disability and the delay), and (2) whether the claimant has a reasonable excuse for the delay; and (3) whether the public corporation has suffered "substantial prejudice" because of the delay (Williams v Nassau County Med. Ctr. 6 NY3d 531, 538 [2006]; Matter of Destine v City ofNew York, 111 AD3d 629 [2013]; Bazile v City ofNew York, 94 AD3d 929,929-930 [2012]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147-153 [2008]). There is no question that the burden of proof rightfully falls on petitioner to prove the factors of infancy, incapacity and a reasonable excuse for the delay since such evidence is likely in his or her exclusive control (see, Manuel v Riverhead Central School District, 116 AD 3d 1048 [2nd Dept 2014] [Petitioner "did not proffer sufficient proof to establish a reasonable excuse for their failure to serve a timely notice of claim"]; McLaughlin v North Colony Central School District, 269 AD2d 658 [3rd Dept 2000] ["The record contains no affidavit by petitioner or medical evidence of his condition and, therefore, the excuse offered by petitioner's counsel, who was not retained until after the 90--day period had expired, has no probative value"]; Ansong v New York City, 308 AD2d 333 [1st Dept 2003] ["Petitioner failed to support his excuse of physical incapacitation with medical evidence from a doctor or other medical provider"]; Santana v Western Regional Off~Track Betting Corporation, 2 AD3d 1304 [4th Dept 2003] ["Nor has claimant established a reasonable excuse for the delay in serving the notice of claim"]. Yet the "substantial prejudice" factor is a different animal. The evidence regarding prejudice ~if 10 any- suffered by the public corporation is largely in the control of the public corporation. Only the public corporation is in a position to conduct an internal investigation to discover whether it has suffered real prejudice from the delay. 2. Appellate Division Case Law Regarding Burden of Proof on "Substantial Prejudice" Issue. Despite the obvious truth that the public corporation is in a better position to investigate and present the facts regarding its own "substantial prejudice", the case law provides no consensus on who has the initial burden regarding this factor. Our courts have come to three disparate conclusions on this issue, with no uniformity even within some of the Departments, to wit: (1) the Petitioner has the burden of proof to show an absence of prejudice; (2) the Respondent has the burden of proof to show prejudice, or (3) prejudice can be merely presumed or inferred from the delay alone with no other evidence regarding prejudice presented. FIRST DEPARTMENT The First Department generally finds that the burden falls on the public corporation to show prejudice: See, e.g., Matter ofRivera v City of New York, 127 AD3d 445 (1st Dept 2015) ("the City has not shown that it has suffered substantial prejudice by the delay"), citing, In re Mercado, 100 AD3d 445,446 (1st Dept 2012); Sosa v City of New York, 124 AD3d 546 (1st Dept 2015) (Respondent "has not established that it has been substantially prejudiced"). There is, however, a line of First Department cases that seems to hold that neither side has the initial burden, but rather that there is a rebuttable presumption of prejudice when the public corporation did not have knowledge of the essential facts of the claim within the statutory period or a reasonable time thereafter. For example, in Casale v City of New York (95 AD3d 744 11 [1st Dept 2012]) the First Department held that "petitioners have offered nothing to rebut the inference ofprejudice that arises from their eight-month delay in serving the notice of claim"]; Vargas v New York City Housing Authority, 232 AD2d 263 [1st Dept 1996] ["There (was) no evidence as to the scope of the investigation conducted, nor any written report indicating that the Housing Authority had actual knowledge of the underlying facts which formed the basis of the instant lawsuit, such as to eliminate the inference that prejudice would accompany the passage oftime"]; McGinness v City of New York, 113 AD3d 566 [1st Dept 2014] [availability of records does not rebut 11inference of prejudice" that arises from delay in serving notice of claim] ). In other cases, however, the First Department has disavqwed this "rebuttable presumption" of prejudice rule (see, Matter of Lopez v City of New York, 103 AD3d 567,568 [1st Dept 2013] ["Conclusmy assertions of prejudice, based solely on the delay in serving the notice of claim, are insufficient"]; Thomas v New York City Housing Authority, 132 AD3d 432 [1st Dept 2015] ["Prejudice will not be presumed" upon a General Municipal Law § 50-e application]). The Thomas Court went on to place the burden of showing prejudice squarely on the public corporation, noting that "conclusory assertions of prejudice, based solely on the delay in serving the notice of claim, are insufficient" (Thomas v New York City Housing Authority, supra, citing, Goodwin v New York City Hous. Auth, 42 AD3d 63, 68 [1st Dept 2007]) The few First Department cases that hold that prejudice can be presumed from the mere delay in serving the notice of claim are at odds with other cases from all three other Departments holding that prejudice cannot be presumed merely by the delay in serving the Notice of Claim (See Kellman v Hauppauge Union Free Sch. Dist., 120 AD3d 634, 636-637 [2nd Dept 2014] [Municipality's conclusory and unsupported contentions regarding prejudice due to passage of time found inadequate]; Matter of Schwindt v County of Essex, 60 AD3d 1248, 1249-1250 [3rd 12 Dept 2009] [Conclusory assertions of prejudice based upon "mere passage of time" found "unpersuasive"], citing, Leeds v Port Wash. Union Free Sch. Dist., 55 AD3d 734, 736 [2nd Dept 2008] ["Conclusory assertions that (Respondent) will be unable to investigate the petitioners' claim due to the passage of time (are) insufficient to overcome the petitioners' showing of a lack of substantial prejudice"]; Jordan v City of NY, 41 AD3d 658, 659-660 [2nd Dept 2007] [City's conclusory assertions of prejudice, based solely on delay in filing the notice of claim, found insufficient]). This First Department line of cases also appears at odds with those cases saying that "speculation" regarding "prejudice" is not enough (see, Matter of Kurz v New York City Health and Hasps. Corp., 174 AD2d 671, 673 [2nd Dept 1991] ["The (public corporation) should thus not be heard to complain of prejudice based upon its purely speculative argument that employees with knowledge of the facts may no longer work at the (public corporation)"]; Matter of Welch v Board ofEduc. Of Saratoga Cent. School Dist., 287 AD2d 761,764 [3rd Dept 2001] ["The record is devoid of evidence, such as affidavits from those (allegedly unavailable) individuals, to support the claim that memories of potential witnesses have faded so much that respondent's ability to maintain a defense has been unduly undermined"]). SECOND DEPARTMENT The Appellate Division Second Department often places the burden on the Petitioner to show that the public corporation was not prejudiced (see, Felice v Eastport/South Manor C.S.D., 50 AD3d 138, 152 [2nd Dept 2008] [Claimant "bears the burden of showing that the delay will not substantially prejudice the public corporation in maintaining its defense on the merits"]); Randolph v Westchester Medical Center, 122 AD3d 822 [2nd Dept 2014] [same]; Valila v Town of Hempstead, 107 AD3d 813 [2nd Dept 2013] [same]; DeVivo v Town ofCarmel, 68 AD3d 991 13 [2nd Dept 2009] [same]; Mitchell v Town of Greenburgh, 96 AD3d 852 [2nd Dept 2012] [11It 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 statute11 ]; Williams v Nassau County Medical Center, 229 AD2d 114 [2nd Dept 1997], aff'd 6 NY3d 531 [2006] [Where infant victim of medical malpractice waited ten-years to serve notice of claim, petitioner 11failed to establish that the defendants would not be substantially prejudiced in maintaining their defense · on the merits"]). The case on appeal to this Court comes from the Second Department and follows the line of cases cited immediately above. The Second Department, however, has not been consistent in this regard, with some of its decision placing the burden of proof on the public corporation, especially where the petitioner is severely disabled (see, Matter of Haeg v County of Suffolk, 30 AD 3d 520 [2nd Dept 2006] [where petitioner was severely incapacitated and "the County failed to demonstrate how it was prejudiced by the lack of timely notice" application to late-serve granted]; Matter of DeMoffetto v City of new York, 216 AD2d 295, 296 [2nd Dept 1995] [where petitioner was severely incapacitated and "the respondent had failed to demonstrate how it was prejudiced by the lack of prompt notice", application to late-serve granted]; Bensen v Town of Islip, 99 AD2d 755 [2nd Dept 1984] [Permission to late-serve granted even where pubic corporation had no timely actual knowledge of the facts of the claim and even though the delay in serving the application to late- serve the claim was eleven months, where petitioner was severely disabled and respondent "made no showing of prejudice"]; Underwood v New York City Housing Authority, 177 AD2d 698 [2nd Dept 1991] [Permission to late-serve granted to lead-poisoned infant even though respondent had no actual timely knowledge ofthe facts of the claim and even though the delay in 14 serving the petition to .late-serve the claim was 14 months, given Petitioner's infancy and disability and the lack of prejudice to the respondent]). THIRD AND FOURTH DEPARTMENTS The Third and Fourth Appellate Divisions consistently place the burden of showing prejudice on the public corporation: Third Department: See, e.g., Matter of Hayes v DeL-Chenango-Madison-Otsego Bd. of Coop. Educ. Servs., 79 AD3d 1405 (3rd Dept 2010) ("Respondents provided no particulars regarding the manner in which they were prejudiced by the delay); Tara v County of Otsego, 12 AD3d 984 (3rd Dept 2004) ("Respondent has failed to allege any prejudice, including the unavailability of key witnesses"); Kavanaugh v Memorial Hospital and Nursing Home of Greene County, 126 AD2d 930 (3rd Dept 1987) (Respondent "has not shown any prejudice to itself as a result of the delay, and given Memorial's actual notice, it is unlikely that any prejudice could be established). Fourth Department: See, Shaul v Hamburg Central School District, 128 AD3d 1389 (4th Dept 20 15) ("Respondent has made no particularized or persuasive showing that the delay caused it substantial prejudice"), citing, Hall v Madison-Oneida County Board of Cooperative Education Services, 66 AD3d 1434 (4th Dept 2009) (same); Brown v City of Buffalo, 100 AD3d 1439 (4111 Dept 2012) ("Although we agree with claimants that respondent 'failed to substantiate [its] conclusory assertions that [it was] substantially prejudiced' by the [13-month] delay we nevertheless conclude that the court properly denied claimants' application inasmuch as they failed to present a reasonable excuse for the delay and respondent lacked timely knowledge of 15 the facts constituting the claim"), quoting, Terrigino v Village of Brockport, 88 AD 3d 1288 ( 4111 Dept 2011) (same). 3. Court of Appeals Case Law Regarding Burden of Proof on "Substantial Prejudice" Factor. Although this Court has not made any direct pronouncements regarding who has the burden of proof regarding "prejudice", this Court skirted the issue in Williams v Nassau County Medical Center, 6 NY3d 531 [2006]). In that case, this Court examined an application brought by an infant to late-serve a notice of claim on a municipal hospital where said hospital did not have actual knowledge of the essential facts of the claim until ten years after the alleged malpractice when the application to late-file the notice of clalin was brought. The Second Department had denied the application to late-serve the notice of claim in part because petitioner had "failed to establish that the defendants would not be substantially prejudiced in maintaining their defense on the merits" due to plaintiffs lengthy delay (ten years) (Williams v Nassau County Medical Center, 229 AD2d at 114, aff'd 6 NY3d 531 [2006]). One of petitioner's primary contentions before this Court was that he had been "incorrectly burdened ... with the responsibility of showing lack of substantial prejudice" (Williams v Nassau County Medical Center, supra). In addressing this argument, this Court stated: Plaintiff also asks us to hold that the Appellate Division incorrectly burdened him with the responsibility of showing lack of substantial prejudice to the defendants as a result of late service of the notice of claim. Although the length of the delay is not alone dispositive, it is influential. Here, there was a 10-year delay. On the theory that the hospital knew or should have known of the essential facts constituting his claim, plaintiff argues that the defendants were not substantially prejudiced. Like the length of the delay in service, proof that the defendant had actual knowledge is an important factor in determining 16 whether the defendant is substantially prejudiced by such a delay. We have no cause to disturb the Appellate Division's determination that defendants did not have actual knowledge. Accordingly, that Court's finding of substantial prejudice was within its discretion (Williams, supra, 6 NY3d at 1157-1158). The Court added an important footnote to the above: In an analogous situation, commencing an action or special proceeding, late service is permissible under CPLR 306-b "upon good cause shown or in the interest of justice." We have noted, in that context, that lengthy delays in service can lead a court to infer substantial prejudice (Williams, supra, FN3, citing, Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 107 [2001] [emphasis added]). The Court thus implied- but did not actually hold- that, in the context of applications to late-serve a notice of claim, substantial prejudice can be presumed where the delay !s very long (ten years in Williams). Conversely, the Court implied that prejudice cannot be implied where the delay is relatively short. C. Supreme Court's and the Appellate Division's "Presumption" of Prejudice and Placement of the Burden on Petitioner to Show Lack of Prejudice was an Abuse of Discretion. In this case, despite the School District having presented absolutely no evidence of prejudice, the petition to late-serve was denied by the Supreme Court, which denial was affirmed by the Second Department. In examining the important "prejudice" factor, Supreme Court did not demand proof from the respondent, but held that prejudice could be merely presumed from the five-month delay. Specifically, Judge Tarantino reasoned that, because of the five-month delay, the District was unable to "investigate the merits of the claim about the placement of the sign while information [was] likely to be available" (7 [emphasis added]). There was no proof that the information about the sign was unavailable. According to Judge Tarantino, the public 17 corporation was not required to present any proof at all of prejudice because "the burden is on the [petitioner], not the [respondent] (sic) 3 to demonstrate that there will be no prejudice by the delayed filing" (7). Judge Tarantino further speculated that "matriculation and graduation of students and personnel changes presumably hinder the school district's ability to gather information about the creation of the sign and the decision about where and how to position it" (7). The Court required no proof from the District that this was so, and the District provided none. Thus, Judge Tarantino espoused both the views that (1) petitioner has the burden of proof on prejudice and (2) prejudice can be presumed from the delay in serving a notice of claim alone. The Second Department, in affirming Judge Tarantino, also placed the burden of proof squarely on petitioner: The petitioners failed to demonstrate that their delay in serving a notice of claim would not substantially prejudice the School District's ability to defend against the claim on the merits. Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the petition and dismissing the proceeding (Newcomb v Middle Country Central School District, 128 AD3d 701 [2nd Dept 2015] [emphasis added]). Amicus submits that Supreme Court erred in presuming that the District was unable to "investigate the merits of the claim about the placement of the sign while information [was] likely to be available" (7). The public corporation should have been required to submit some evidence that the information regarding the placement of the sign was no longer available. Supreme Court further erred by presuming that "'matriculation and graduation of students and personnel changes presumably hinder the school district's ability to gather information about the creation of the sign and the decision about where and how to position it" (7). The District should have been required to produce such evidence, which was uniquely in the District's possession. It 3 See, FN 1. 18 was a further abuse of discretion for both the Supreme Court and the Second Department to place the burden on Petitioner of showing lack of prejudice, especially since Petitioner had no access to any of this evidence regarding prejudice or lack thereof, which was in the exclusive control of the District. Judge Tarantino's analysis sets up a kind of tautology wherein General Municipal Law § 50-e(S) relief can only rarely be granted. A petition to late-serve a notice of claim is by definition late, and thus there is always some "delay". If this delay, even a relatively short one, automatically triggers a "presumption" of prejudice, and this alone is legally sufficient, then the late application will almost always be deemed prejudicial and subject to deniaL This Court's Williams case (see, Williams v Nassau County Med. Ctr.· Supra) is easily distinguishable from the instant case on the issue of who should have the burden of proof regarding prejudice. In a case like Williams where the delay is extremely lengthy ~ ten years - the evidence necessary to investigate and defend the claim is not only almost certainly stale, it is likely all but non-existent. But with shorter delays, such as five months, significant prejudice does not flow logically and inevitably from the delay. In cases of such of short delays, the public corporation should be required to show prejudice (see, Plaza ex. Rei. Rodriguez v New York Health and Hospitals Corporation, 101 AD3d 558 [1st Dept 2012], aff'd on other-ground, 21 NY3d 983 [2013] ["Defendant has failed to show substantial prejudice caused by the late service of the notice of claim beyond clalining unavailability of witnesses [but] no averment has been made that any witness is actually unavailable; beyond a general claim that the delay has created prejudice, defendants have not shown this to be the case"]). At least with short delays, placing the initial burden on the public corporation avoids obvious foul play and unfair suppression of evidence. If the rule of law is that the public corporation need not show prejudice, and that prejudice will instead be presumed by even a short 19 delay, the public corporation can defeat a petition to late-serve a notice of claiin simply by not investigating at all, or by not providing affidavits from its employees with knowledge of how the delay did or did not actually prejudice its ability to investigate and defend the claim. All that would be needed then is a: summary· conclusory statement from respondent that delay, which is by definition is in every petition, no matter how short or long, caused prejudice. It must be kept in mind that the application to late-serve the notice of claim is usually made pre-suit, and as such petitioner has no access the CPLR discovery mechanisms such as notices for discovery, depositions, etc. Petitioner does not have access to internal documents produced by the public corporation that may show lack of prejudice. Petitioner has no access to the public corporation's employees, who may have knowledge regarding prejudice or lack of prejudice to the public corporation. Only the public corporation has access to said employees and documents. If the public corporation, as here, ·willfully fails to produce affidavits from employees stating how they are prejudiced in their ability to investigate or defend the claim, there is no injustice in granting the application to late-serve the notice of claim. A rule of law that rewards the public corporation for withholding evidence of its alleged prejudice not only constitutes bad public policy, but is also inconsistent with the purpose of the 1976 Amendments to the Statute, which was to provide "greater fairness" to injured claimants while still preserving the legitimate purpose of the notice of claim (see, City of Rye v Rodriguez, supra). Stated conversely, a rule requiring the public corporation to show prejudice when the petitioner's delay is relatively short is consistent with the purposes of the 1976 Amendments, which was intended to mitigate against the harshness of the notice-of-claim Statute. In City of Rye, this Court noted that "even when a public body has had no formal alert that a claim in fact will be brought, actual knowledge of the facts within 90 days or shortly thereafter makes it unlikely that prejudice will flow from a delay in filing ... " (City of Rye v 20 Rodriguez, supra, at 399). Thus, an application to late-serve should generally be granted when the public corporation had timely actual knowledge. But the converse is not true. The absence of actual knowledge of the facts of the claim within the statutory 90-day period should not result in denial of the application to late-serve where the public corporation has not been prejudiced and the other equitable factors weigh in petitioner's favor. Logic dictates that, while timely actual lrnowledge by the public corporation negates prejudice, a five month delay does not necessarily cause prejudice. The accident scene might be unchanged. The public corporation's employees involved in the alleged wrongdoing might all be available. They might all have good memories. Physical evidence and photos and videos of the accident scene might be fully intact. This could be so even a year or more after the incident, depending on the facts. The public corporation is in the best position to investigate and present to the Court the facts regarding its own alleged prejudice in all these realms. The burden should fall on the public corporation to do so. D. The Respondent did not Meet Its Burden of Showing Prejudice In the instant case, the Record shows that the District presented absolutely no proof that it was prejudiced. Indeed, the only mention of prejudice at all appears in a self-serving affidavit of the public corporation's lawyer, who does riot even claim to have personal knowledge of the "facts" to which she testifies: (65). Here, there is no question that [the District] had no reason to anticipate that a claim would be brought against it regarding this accident. As such, it had no reason to conduct any investigation of the accident and is prejudiced from doing so at this time" The District did not deny that its employees or agents had placed the sign near the intersection where it was visible in the police photographs. The District did not deny that it was 21 able to locate the employees or agents who had placed the sign there. The District did not claim that any witnesses had vanished. It did not claim that any memories had been tarnished, nor that the police pictures were incapable of refreshing any recollection. or memory. The District did not claim the intersection had changed at all. The district did not even claim that the sign could not be located. Despite a complete lack of evidence regarding prejudice, the Supreme Court and then the Second Department found prejudice. This is a fundamental error amounting to an abuse of discretion. E. Petitioner Produced Evidence of Lack of Prejudice In this case, not only did the District neglect to put in any evidence whatsoever of prejudice, the Petitioner put in substantial evidence that the District suffered no appreciable prejudice. Even though the Petitioner was unable to have access to the District's employees to see whether they had knowledge of some prejudice, or to examine the sign that was likely in the District's possession, the petitioner submitted the police photographs which captured the scene of the accident, as well as the police investigative report listing all the witnesses to the accident. These are precisely the kinds of investigative materials that "capture" the scene and are often held to avoid prejudice to the public corporation (see, Sosa v City of New York, supra, at 515 ["Any alleged prejudice is undermined by the police department's contemporaneous investigation, which included interviewing witnesses and taking photographs of the location as it existed at the time of the accident"]; In re Hubbard, 71 AD3d 1313, 1315-16 [3rd Dept 2010] [No prejudice where "the Sheriffs Department took numerous photographs of the accident scene shortly after the collision occurred"]; Matter of Mounsey v City of NY, 68 AD 3d 998, 999 [2nd Dept 2009] [Photographs taken of defective condition within 90 days following accident found 22 to eliminate prejudice]; Caridi v New York Convention Center Operating Corp., 47 AD3d 526, 526 [1st Dept 2008] [Any prejudice undermined because of State Police's investigation including "photographs of the location as it existed at the time of the accident"]; Ruffino v City of New York, 57 AD3d 550, 552 [2nd Dept 2008] [Photographs of scene taken the day of the accident dispensed with prejudice]; Lozada v City of New York, 189 AD2d 726, 727 [1st Dept1993] [No prejudice where photographs of accident site were taken]). Even if, arguendo, the facts of the claim did not become known by the School District until some 5 months after the 90-day period expired, at that time the intersection was in the same condition as it was in back on the date of the accident. The photographs showed the exact location of the sign that allegedly contributed to causing the accident are preserved. The school district oould have its experts re-enact the accident by re-installing the sign and having a pedestrian walk past it into the intersection. The District's lawyers or investigators could have a vehicle travel through the intersection as a pedestrian walks behind the sign and toward the intersection to determine visibility, reaction times, etc. Iii its Brief on Appeal, the District argues that the photographs do not eliminate the prejudice because "the photographs do not provide information as to who placed the sign and where it was initially placed" (Respondent's Brief, p. 74). This is true. The photos do not show that. To prevail in his claim, Claimant will have to provide proof that the District or someone under the District's control placed the sign. Yet it is striking that the District provided no affidavits from anyone from the District denying they placed the signs or stating that any witnesses that would know are deceased, gone, unavailable, or have foggy memories. The fact that the District was silent as to whether it or someone under its control placed the sign speaks volumes about its likely involvement in doing so. It also must be kept in mind that, for purposes 23 of this petition, Supreme Court assumed the District had knowledge of sign's placement and removal within 90 days and the District has not disputed that the District placed and removed sign (6). The District also argues that "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" (Respondent's Brief, p. 74). Again, the District provides no affidavit from anyone at the District stating their knowledge - or lack of it -- regarding these salient facts. The District claims that ''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" (Respondent's Brief, p. 74). But the District puts in no affidavit or other proof that they were in fact so prejudiced. Again, the District's silence speaks volumes about whether it was in fact prejudiced. In any event, there is no evidence in this Record that an investigation eight months after the accident would not have been just as effective as one conducted immediately after the accident. Thus, this case is not only about a public corporation not meeting its burden of proof regarding prejudice, but also about the Petitioner providing ample evidence of lack of prejudice. On these fa~ts it is particularly disturbing that both the Supreme Court and the Second Department would "presume" prejudice from the mere passage of time- only five months' time --and at the same time reject outright Petitioner's ample proof oflack of prejudice. F. Conclusion on the Issue of Prejudice In sum, the liberalizing purposes of the 1976 Amendments to General Municipal § 50- e(S) will be thwarted if this Court allows our courts to merely "presume" prejudice or puts the burden on petitioner of proving lack of prejudice where the delay in serving the notice of claim is relatively short. Since this is precisely what happened here- both the Supreme Court and the 24 Appellate Division presumed prejudice - both courts abused their discretion and committed reversible error. The error is even more egregious because the Petitioner did in fact meet his burden of showing lack of prejudice. POINT II THE ERROR WAS NOT HARMLESS BECAUSE IT SKEWED THE EQUITABLE FACTORS TO BE CONSIDERED UNDER GENERAL MUNICIPAL LAW 50-E(S) IN FAVOR OF THE SCHOOL DISTRCIT . Until now, Amicus has been discussing only the "substantial prejudice" factor. Notable in this case, however, is the fact that all the other important factors weigh heavily, indisputably, in petitioner's favor. First, the petitioner was and "infant" and was (and is) also 11mentally or physically disabled" because of the accident. Second, petitioner had an unassailable excuse for being late in serving the notice of claim: His lawyers had no way of knowing the role the District played in the accident until they received proper photographs of the scene of the accident, which they diligently attempted to obtain in a timely manner. If Supreme Court had found no prejudice, as it should have (see, Point I, supra) then all the important factors (no prejudice, infancy, disability, reasonable excuse) would have weighed in Petitioner's favor. The only factor, arguendo4, to weigh against the Petitioner would have been that the District did not have actual knowledge of the essential facts of the claim within the statutory period. Still, the delay was short (only five months) and, as indicated above, caused no prejudice. On those facts, with all the factors weighing in Petitioner's favor except the issue of timely actual knowledge, it certainly would have been an abuse of discretion to deny the 4 See, FN 1, supra. 25 application (see, Bensen v Town of Islip, 99 AD2d 755 [2"d Dept 1984] [Permission to late-serve granted even where pubic corporation had no timely actual knowledge of the facts of the claim and even though the delay in serving the application to late-serve the claim was eleven months, where petitioner was severely disabled and respondent "made no showing of prejudice"]; Underwood v New York City Housing Authority, 177 AD2d 698 [2"d Dept 1991] [Permission to late-serve granted to lead-poisoned infant even though respondent had no actual timely knowledge of the facts of the claim and even though the delay in serving the petition to late- serve the claim was 14 months, given Petitioner's infancy and the lack of prejudice to the respondent]). Rojas v New York City Health And Hospitals Corporation, 127 AD3d 870 [2"d Dept 2015] [application to late-serve granted where hospital was not substantially prejudiced because witnesses still available and petitioner had a reasonable excuse for the five-month delay]) But in this case, as stated above, the Petitioner had not only a very reasonable excuse (no way of knowing of a possible claim against the school district until the Petitioner finally received the police photographs), but all the other key equitable factors (infancy, disability) weighed heavily in petitioner's favor. Thus, in failing to properly decide and weigh the prejudice factor, the Supreme Court and then the Second Department improperly skewed the scales of the General Municipal Law § 50-e(S) factors toward the public corporation, whereas without that error the scales would have tipped unequivocally toward the Petitioner. The error had devastating consequence to this severely injured and disabled infant: His application to late-serve the notice of claim was improperly denied. CONCLUSION 26 Both Supreme Court and the Appellate Division improperly "presumed" prejudice, failed to require the District to prove prejudice, and thus found prejudice where there was none. The factor of prejudice was then placed on the section General Municipal Law 50-e(S) scales, tilting the scales improperly in the public corporation's favor, which resulted in an improper denial of the application to late serve the notice of claim. Justice requires a reversal. Dated: Aubum, New York August 30, 2016 Respectfully submitted, By:~ Michae G. Bersam . Michaels & Smolak, P.C. Attorneys for Amicus Curiae New York State Academy of Trial Lawyers 17 East Genesee Street Aubum, New York 13152 (315) 253 3293 27