IN RE: CHRISTOPHER M. (2021)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Bruening, J.), entered May 12, 2020 in Essex County, which partially granted petitioner's application pursuant to General Municipal Law § 50–e (5) for leave to serve a late notice of claim.

In August 2019, petitioner, on behalf of his son, commenced this proceeding seeking leave to serve a late notice of claim upon respondents.  According to the notice of claim, the son was a student and a member of the track team at respondent Moriah Central School District (hereinafter Moriah) and was subjected to bullying and harassment at various times between 2016 and 2019.  The notice of claim alleged claims of negligent supervision and intentional infliction of emotional distress.  Respondents opposed the application.  Supreme Court denied the application to the extent that the notice of claim was premised upon alleged harassment and bullying that occurred during the 2018–2019 track season and otherwise granted it.  This appeal ensued.

Whether to grant an application for leave to serve a late notice of claim is a matter resting in the discretion of the trial court (see Matter of Kranick v. Niskayuna Cent. Sch. Dist., 151 A.D.3d 1262, 1262, 56 N.Y.S.3d 636 [2017];  Mindy O. v. Binghamton City School Dist., 83 A.D.3d 1335, 1336, 921 N.Y.S.2d 696 [2011]).  This discretionary determination requires the consideration of various factors, “including whether the respondent[s] had actual knowledge of the essential facts constituting the claim, whether there exists a reasonable excuse for any delay in [serving] the notice of claim and whether the delay has caused substantial prejudice to any defense to the claim” (Matter of Dewey v. Town of Colonie, 54 A.D.3d 1142, 1142, 863 N.Y.S.2d 849 [2008] [internal quotation marks and citation omitted];  see Babcock v. Walton Cent. Sch. Dist., 119 A.D.3d 1061, 1063, 989 N.Y.S.2d 172 [2014]).  No single factor is determinative, but whether respondents had actual knowledge is a factor that is given great weight (see Matter of Holbrook v. Village of Hoosick Falls, 168 A.D.3d 1263, 1264, 90 N.Y.S.3d 717 [2019];  Babcock v. Walton Cent. Sch. Dist., 119 A.D.3d at 1063, 989 N.Y.S.2d 172).

Supreme Court found that, except for the alleged incidents that occurred in October 2018 and May 2019, respondents had knowledge of the incidents set forth in the notice of claim.  The record contains a 2017 letter from the son's mother addressed to Moriah's athletic coordinator and copied to Moriah's superintendent detailing the instances of harassment against the son.  A follow-up letter discloses that these instances of alleged bullying were discussed in a meeting with the superintendent, the athletic coordinator and the track coach.  The record further discloses that petitioner immediately complained to a faculty member and the track coach about the incidents referenced in the mother's letter.  As such, the record supports the court's finding that respondents had knowledge of the essential facts constituting the claim (see Matter of C.B. v. Carmel Cent. Sch. Dist., 164 A.D.3d 670, 671, 83 N.Y.S.3d 276 [2018];  Matter of Cornelius v. Board of Educ. of Delhi Cent. School Dist., 77 A.D.3d 1048, 1049, 911 N.Y.S.2d 481 [2010];  Matter of Scuteri v. Watkins Glen Cent. School Dist., 261 A.D.2d 779, 780, 689 N.Y.S.2d 751 [1999];  Matter of Esposito v. Carmel Cent. School Dist., 187 A.D.2d 854, 855, 589 N.Y.S.2d 703 [1992]).¹

As to the other factors, respondents’ assertion that they were prejudiced due to the passage of time and the departure of employees and students was conclusory, and they failed to make a “particularized evidentiary showing” of substantial prejudice (Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 467, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016];  see Matter of C.B. v. Carmel Cent. Sch. Dist., 164 A.D.3d at 672, 83 N.Y.S.3d 276;  Matter of Welch v. Board of Educ. of Saratoga Cent. School Dist., 287 A.D.2d 761, 764, 731 N.Y.S.2d 94 [2001]).  Furthermore, although Supreme Court agreed with respondents that petitioner failed to show any nexus between the son's infancy and the delay in serving the notice of claim, such failure was not fatal to petitioner's application, especially where, as here, respondents had knowledge of the claim and would not be prejudiced if petitioner's application was granted (see Matter of Hinton v. New Paltz Cent. School Dist., 50 A.D.3d 1414, 1416, 857 N.Y.S.2d 753 [2008];  Matter of Scuteri v. Watkins Glen Cent. School Dist., 261 A.D.2d at 780, 689 N.Y.S.2d 751).  Accordingly, Supreme Court did not abuse its discretion in partially granting petitioner's application (see Matter of Euson v. County of Tioga, N.Y., 94 A.D.3d 1279, 1280–1281, 941 N.Y.S.2d 815 [2012];  Mindy O. v. Binghamton City School Dist., 83 A.D.3d at 1337–1338, 921 N.Y.S.2d 696).

ORDERED that the order is affirmed, with costs.

FOOTNOTES

1.   To the extent that respondents contend that not all of them were notified of the alleged bullying, such contention is improperly raised for the first time on appeal (see Amica Ins. v. Baum, 180 A.D.3d 1284, 1285, 116 N.Y.S.3d 910 [2020]).

Aarons, J.

Egan Jr., J.P., Clark, Pritzker and Reynolds Fitzgerald, JJ., concur.