IN RE: Frank VICARI III

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

IN RE: Frank VICARI III, etc., appellant, v. GRAND AVENUE MIDDLE SCHOOL, et al., respondents.

Decided: June 24, 2008

REINALDO E. RIVERA, J.P., STEVEN W. FISHER, ROBERT A. LIFSON, and MARK C. DILLON, JJ. Leonard Zack, New York, N.Y., for appellant. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Christine Gasser and Gregory A. Cascino of counsel), for respondents.

In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a late notice of claim, the petitioner appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), dated November 28, 2007, as, upon reargument, adhered to its original determination in an order dated September 12, 2007, denying the petition.

ORDERED that the order date November 28, 2007, is affirmed insofar as appealed from, with costs.

On February 7, 2006, the infant petitioner, Frank Vicari III (hereinafter the petitioner), a seventh-grade student at the Grand Avenue Middle School (hereinafter the school), was sitting at his desk taking a test when he stood up to check the time.   Upon sitting down, the desk toppled over and fell on his right hand, injuring two fingers.   On July 10, 2007, the petitioner, by his father, sought leave to serve a late notice of claim upon the school and the Bellmore Merrick Central High School District (hereinafter together the respondents).   The Supreme Court denied the petition.   The petitioner moved for leave to reargue and, upon reargument, the Supreme Court adhered to its original determination denying the petition.

 The Supreme Court providently exercised its discretion in denying the petition for leave to serve a late notice of claim upon the respondents.   In determining whether or not to grant leave to serve a late notice of claim, a court must consider:  (1) whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter;  (2) whether the petitioner was an infant or mentally or physically incapacitated;  (3) whether the petitioner had a reasonable excuse for the failure to serve a timely notice of claim;  and (4) whether the delay would substantially prejudice the public corporation in maintaining its defense (see General Municipal Law § 50-e[5];  Education Law § 3813[2-a];  Matter of Melissa G. v. North Babylon Union Free School Dist., 50 A.D.3d 901, 855 N.Y.S.2d 276).   A court has the discretion to consider all relevant factors and the presence or absence of any one factor is not necessarily determinative (see Jordan v. City of New York, 41 A.D.3d 658, 659, 838 N.Y.S.2d 624;  Matter of Narcisse v. Incorporated Vil. of Cent. Islip, 36 A.D.3d 920, 921, 829 N.Y.S.2d 578).

 Contrary to the petitioner's contention, neither the Medical Claim Form nor the Report of Personal Injury Accident prepared by school officials on the date of the incident provided the respondents with actual knowledge of the essential facts constituting the claim within the 90-day statutory period or a reasonable time thereafter (see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 149-150, 851 N.Y.S.2d 218;  Matter of Scolo v. Central Islip Union Free School Dist., 40 A.D.3d 1104, 1105, 838 N.Y.S.2d 577;  Matter of Doyle v. Elwood Union Free School Dist., 39 A.D.3d 544, 545, 833 N.Y.S.2d 204;  Johnson v. Katonah-Lewisboro School Dist., 285 A.D.2d 490, 490-491, 727 N.Y.S.2d 171).   General knowledge of the wrong is insufficient to satisfy the statute (see Matter of Padovano v. Massapequa Union Free School Dist., 31 A.D.3d 563, 564, 818 N.Y.S.2d 274;  Matter of Scott v. Huntington Union Free School Dist., 29 A.D.3d 1010, 1011, 816 N.Y.S.2d 165).

The petitioner also failed to establish a reasonable excuse for the nearly 1 1/212-year delay in serving the notice of claim, as ignorance of the requirement to serve a notice of claim within 90 days after the claim arose is not a legally-acceptable excuse (see Matter of Narcisse v. Incorporated Vil. of Cent. Islip, 36 A.D.3d at 922, 829 N.Y.S.2d 578;  Matter of Ragin v. City of New York, 222 A.D.2d 678, 636 N.Y.S.2d 83).   Moreover, the petitioner's infancy, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse (see Matter of Julie F. v. City of New York, 50 A.D.3d 794, 855 N.Y.S.2d 622;  Matter of Lennon v. Roosevelt Union Free School Dist., 6 A.D.3d 713, 714, 775 N.Y.S.2d 537).

The petitioner failed to demonstrate that the respondents would not be substantially prejudiced in maintaining their defense on the merits (see Matter of Padovano v. Massapequa Union Free School Dist., 31 A.D.3d at 564-565, 818 N.Y.S.2d 274;  Matter of Ryder v. Garden City School Dist., 277 A.D.2d 388, 389, 716 N.Y.S.2d 97).

The petitioner's remaining contentions are without merit.

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