IN RE: James SMITH

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

IN RE: James SMITH, respondent, v. BALDWIN UNION FREE SCHOOL DISTRICT, appellant.

Decided: June 23, 2009

REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH COVELLO, RANDALL T. ENG, and L. PRISCILLA HALL, JJ. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for appellant. Brody, O'Connor & O'Connor, Northport, N.Y. (Scott A. Brody and Nicole Norris Poole of counsel), for respondent.

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the appeal is from an order of the Supreme Court, Nassau County (Phelan, J.), dated September 3, 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.

Timely service of a notice of claim is a condition precedent to an action founded on tort and commenced against a school district (see Education Law § 3813[2];  Matter of Padovano v. Massapequa Union Free School Dist., 31 A.D.3d 563, 564, 818 N.Y.S.2d 274).   In deciding whether to permit the service of a late notice of claim, the court “shall consider, in particular, whether [the school district] acquired actual knowledge of the essential facts constituting the claim” within 90 days after the claim arose or a reasonable time thereafter, and “shall also consider all other relevant facts and circumstances, including ․ whether the delay in serving the notice of claim substantially prejudiced [the school district] in maintaining its defense on the merits” (General Municipal Law § 50-e[5];  see Matter of Padovano v. Massapequa Union Free School Dist., 31 A.D.3d at 564, 818 N.Y.S.2d 274;   Matter of Conroy v. Smithtown Cent. School Dist., 3 A.D.3d 492, 493, 770 N.Y.S.2d 428;  Matter of Termini v. Valley Stream Union Free School Dist. No. 13, 2 A.D.3d 866, 769 N.Y.S.2d 596).

Here, the delay in serving the notice of claim was the result of law office failure, which is not a sufficient excuse (see Matter of Baglivi v. Town of Southold, 301 A.D.2d 597, 598, 754 N.Y.S.2d 43;  Matter of Kittredge v. New York City Hous. Auth., 275 A.D.2d 746, 713 N.Y.S.2d 219;  Matter of King v. New York City Hous. Auth., 274 A.D.2d 482, 483, 711 N.Y.S.2d 33).   Additionally, the petitioner failed to establish that the appellant, Baldwin Union Free School District (hereinafter the School District), acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter.   The petitioner's claim that a janitor employed by the School District was present at the time and place of the incident was insufficient to establish that the School District acquired actual timely knowledge of the essential facts constituting the claim (see Matter of Bruzzese v. City of New York, 34 A.D.3d 577, 578, 824 N.Y.S.2d 653;  Matter of Pico v. City of New York, 8 A.D.3d 287, 288, 777 N.Y.S.2d 697;  Matter of Shapiro v. County of Nassau, 208 A.D.2d 545, 616 N.Y.S.2d 786).   Finally, the petitioner failed to establish that the School District would not be substantially prejudiced in maintaining its defense on the merits as a result of the petitioner's 21/212 month delay after the expiration of the 90-day period in moving for leave to serve a late notice of claim (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 Sverdlin v. City of New York, 229 A.D.2d 544, 545, 645 N.Y.S.2d 843).

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