IN RE: Ceni CASTRO (2009)

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, Clarkstown Central School District and Woodglen Elementary appeal from an order of the Supreme Court, Rockland County (Berliner, J.), dated October 17, 2008, which granted the petition.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the petition is denied.

The Supreme Court improvidently exercised its discretion in granting the petition for leave to serve a late notice of claim on behalf of the infant, Kevin Sanabria.

The key factors to be considered in determining whether to grant leave to serve a late notice of claim are whether the petitioner demonstrated a reasonable excuse for the failure to timely serve a notice of claim, whether the petitioner was an infant, whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of the incident or a reasonable time thereafter, and whether the delay would substantially prejudice the public corporation in its defense (see General Municipal Law § 50-e[5]; Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 814 N.Y.S.2d 580, 847 N.E.2d 1154; Matter of Vicari v. Grand Ave. Middle School, 52 A.D.3d 838, 838-839, 860 N.Y.S.2d 629; Matter of Melissa G. v. North Babylon Union Free School Dist., 50 A.D.3d 901, 902, 855 N.Y.S.2d 276).

The petitioner did not proffer any excuse for her failure to serve a timely notice of claim upon the appellants. Furthermore, while a school official prepared an accident claim form on the day of the incident, that report, which merely indicated that Sanabria was injured on the jungle gym during recess, did not establish that the appellants had actual knowledge, within 90 days of the incident or a reasonable time thereafter, of the essential facts underlying the petitioner's claim of negligent supervision (see Matter of Scolo v. Central Islip Union Free School Dist., 40 A.D.3d 1104, 838 N.Y.S.2d 577; Matter of Doyle v. Elwood Union Free School Dist., 39 A.D.3d 544, 833 N.Y.S.2d 204; Matter of Scott v. Huntington Union Free School Dist., 29 A.D.3d 1010, 816 N.Y.S.2d 165; Matter of del Carmen v. Brentwood Union Free School Dist., 7 A.D.3d 620, 777 N.Y.S.2d 152; Matter of Conroy v. Smithtown Cent. School Dist., 3 A.D.3d 492, 770 N.Y.S.2d 428; Corrales v. Middle Country Cent. School Dist., 307 A.D.2d 907, 762 N.Y.S.2d 908; Matter of Price v. Board of Educ. of City of Yonkers, 300 A.D.2d 310, 751 N.Y.S.2d 286; Matter of Ryder v. Garden City School Dist., 277 A.D.2d 388, 716 N.Y.S.2d 97). Moreover, the petitioner failed to establish that the nine-month delay after the expiration of the 90-day statutory period would not substantially prejudice the appellants in maintaining a defense on the merits (see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 152, 851 N.Y.S.2d 218; Matter of Lorseille v. New York City Hous. Auth., 295 A.D.2d 612, 744 N.Y.S.2d 880; Matter of Sica v. Board of Educ. of City of N.Y., 226 A.D.2d 542, 640 N.Y.S.2d 610).