CONTE v. VALLEY STREAM CENTRAL HIGH SCHOOL DISTRICT (2005)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Woodard, J.), dated December 14, 2004, which denied its motion to dismiss the complaint and granted the plaintiff's cross motion for leave to serve a late notice of claim.

ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, and the cross motion is denied.

The Supreme Court improvidently exercised its discretion in granting the plaintiff's cross motion for leave to serve a late notice of claim approximately 11 months after the expiration of the 90-day statutory period (see General Municipal Law § 50-e[5] ).   The accident claim form processed by the defendant two months after the accident failed to apprise the defendant of the plaintiff's claim that the defendant was negligent in supervising and managing its students and in failing to provide adequate safety equipment (see 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, 493, 770 N.Y.S.2d 428;  Corrales v. Middle Country Cent. School Dist., 307 A.D.2d 907, 908, 762 N.Y.S.2d 908;  Matter of Price v. Board of Educ. of City of Yonkers, 300 A.D.2d 310, 311, 751 N.Y.S.2d 286).   The plaintiff also failed to establish a reasonable excuse for the delay, as there was no nexus between the plaintiff's infancy and the delay in serving the notice (see Matter of Doe v. Goshen Cent. School Dist., 13 A.D.3d 526, 787 N.Y.S.2d 75;  Matter of Rennell S. v. North Jr. High School, 12 A.D.3d 518, 519, 784 N.Y.S.2d 623;  Matter of Nairne v. New York City Health & Hosps. Corp., 303 A.D.2d 409, 755 N.Y.S.2d 855).   Moreover, the plaintiff failed to rebut the defendant's assertion that the lengthy delay in this case substantially prejudiced its ability to investigate and defend against the claim (see Matter of Doe v. Goshen Cent. School Dist., supra at 527, 787 N.Y.S.2d 75;  Matter of Landa v. City of New York, 252 A.D.2d 525, 526, 675 N.Y.S.2d 377;  Matter of Deegan v. City of New York, 227 A.D.2d 620, 643 N.Y.S.2d 596).

We have not considered the affidavit improperly submitted by the plaintiff for the first time with her papers in reply to the opposition to the cross motion (see Rengifo v. City of New York, 7 A.D.3d 773, 776 N.Y.S.2d 865;  Perre v. Town of Poughkeepsie, 300 A.D.2d 379, 380, 752 N.Y.S.2d 68;  Constantine v. Premier Cab Corp., 295 A.D.2d 303, 304, 743 N.Y.S.2d 516).