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Newcomb v. Middle Country Cent. Sch. Dist.

Supreme Court, Appellate Division, Second Department, New York.
May 6, 2015
8 N.Y.S.3d 422 (N.Y. App. Div. 2015)

Opinion

2014-05995

05-06-2015

In the Matter of Raymond NEWCOMB, et al., appellants, v. MIDDLE COUNTRY CENTRAL SCHOOL DISTRICT, respondent.

Law Offices of Paul A. Montuori, P.C., Mineola, N.Y., for appellant. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Laura A. Endrizzi and Christine Glasser of counsel), for respondent.


Law Offices of Paul A. Montuori, P.C., Mineola, N.Y., for appellant.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Laura A. Endrizzi and Christine Glasser of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

Opinion

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the petitioners appeal from an order of the Supreme Court, Suffolk County (Tarantino, Jr., J.), dated May 13, 2014, which denied the petition and dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

In determining whether to grant a petition for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, a court must consider whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant was an infant at the time the claim arose and, if so, whether there was a nexus between the claimant's infancy and the delay in service of a notice of claim, (3) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim and for the delay in filing the petition, and (4) the delay would substantially prejudice the public corporation in its defense on the merits (see Education Law § 3813[2–a] ; General Municipal Law § 50–e[5] ; Matter of Hampson v. Connetquot Cent. Sch. Dist., 114 A.D.3d 790, 790, 980 N.Y.S.2d 132 ; Matter of Destine v. City of New York, 111 A.D.3d 629, 629, 974 N.Y.S.2d 123 ; Matter of Avalos v. City of N.Y. Bd. of Educ., 67 A.D.3d 675, 675–676, 886 N.Y.S.2d 910 ). The most important factor, based on its placement in the statute and its relation to other relevant factors, is 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 (see General Municipal Law § 50–e[5] ; Matter of Devivo v. Town of Carmel, 68 A.D.3d 991, 991–992, 891 N.Y.S.2d 154 ; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 147, 851 N.Y.S.2d 218 ).

Here, the petitioners failed to establish that the respondent, Middle Country Central School District (hereinafter the School District), received actual knowledge of the essential facts constituting the claim within 90 days after the accrual of the claim or a reasonable time thereafter. Specifically, the petitioners allege that a sign placed on the sidewalk at the intersection where the incident occurred was a proximate cause of their injuries. That sign allegedly advertised a musical production to be performed at a high school within the School District. Even assuming that the School District was responsible for the placement of the sign, the petitioners failed to establish that the School District became aware, within 90 days after the claim accrued or a reasonable time thereafter, 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 (see Matter of Mitchell v. City of New York, 77 A.D.3d 754, 755, 908 N.Y.S.2d 603 ; Matter of Devivo v. Town of Carmel, 68 A.D.3d at 992, 891 N.Y.S.2d 154 ; Matter of Wright v. City of New York, 66 A.D.3d 1037, 1038, 888 N.Y.S.2d 125 ). Moreover, 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 (see Matter of Murray v. Village of Malverne, 118 A.D.3d 798, 800, 987 N.Y.S.2d 229 ; Matter of Manuel v. Riverhead Cent. Sch. Dist., 116 A.D.3d 1048, 1050, 984 N.Y.S.2d 409 ; Matter of

Hampson v. Connetquot Cent. Sch. Dist., 114 A.D.3d at 792, 980 N.Y.S.2d 132 ).


Summaries of

Newcomb v. Middle Country Cent. Sch. Dist.

Supreme Court, Appellate Division, Second Department, New York.
May 6, 2015
8 N.Y.S.3d 422 (N.Y. App. Div. 2015)
Case details for

Newcomb v. Middle Country Cent. Sch. Dist.

Case Details

Full title:In the Matter of Raymond NEWCOMB, et al., appellants, v. MIDDLE COUNTRY…

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: May 6, 2015

Citations

8 N.Y.S.3d 422 (N.Y. App. Div. 2015)
128 A.D.3d 701
2015 N.Y. Slip Op. 3845

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