IN RE: Morgan BUCHER

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

IN RE: Morgan BUCHER, etc., et al., respondents, v. TOWN OF EASTCHESTER, et al., appellants.

Decided: May 29, 2007

WILLIAM F. MASTRO, J.P., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, and EDWARD D. CARNI, JJ. Cerussi & Spring, P.C., White Plains, N.Y. (Kevin P. Westerman of counsel), for appellant Town of Eastchester. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for appellant Eastchester Union Free School District. Tomkiel & Tomkiel, New York, N.Y. (Stanley A. Tomkiel III and Matthew Paul Tomkiel of counsel), for respondent.

In a proceeding pursuant to General Municipal Law § 50-e for leave to serve late notices of claim, the Town of Eastchester appeals from so much of an order of the Supreme Court, Westchester County (Bellantoni, J.), entered May 10, 2006, as granted that branch of the petition which was for leave to serve upon it a late notice of claim on behalf of the infant petitioner Morgan Bucher, and the Eastchester Union Free School District separately appeals, as limited by its brief, from so much of the same order as granted that branch of the petition which was for leave to serve upon it a late notice of claim on behalf of the infant petitioner Morgan Bucher.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and those branches of the petition which were for leave to serve late notices of claim on behalf of the infant petitioner Morgan Bucher upon the appellants are denied.

The Supreme Court improvidently exercised its discretion in granting those branches of the petition which were for leave to serve late notices of claim on behalf of the infant petitioner.   No causal nexus was established between the infancy of the petitioner and the delay in commencing the proceeding (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 814 N.Y.S.2d 580, 847 N.E.2d 1154;  Matter of Cotten v. County of Nassau, 307 A.D.2d 965, 763 N.Y.S.2d 474;  Matter of Kurz v. New York City Health & Hosps. Corp., 174 A.D.2d 671, 571 N.Y.S.2d 533), nor did the petitioners otherwise demonstrate a reasonable excuse for the delay (see e.g. Hebbard v. Carpenter, 37 A.D.3d 538, 830 N.Y.S.2d 270;  Matter of Nieves v. Girimonte, 309 A.D.2d 753, 765 N.Y.S.2d 64).

Additionally, the petitioners failed to establish that the appellants acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter (see General Municipal Law § 50-e [5];  Matter of Dell'Italia v. Long Is. R.R. Corp., 31 A.D.3d 758, 820 N.Y.S.2d 81;  Matter of Cotten v. County of Nassau, supra;  Matter of Sica v. Board of Educ. of City of N.Y., 226 A.D.2d 542, 640 N.Y.S.2d 610).   In this regard, the appellants' alleged knowledge that contaminated fill material had been dumped at the subject sites failed to provide them with actual knowledge that an airborne health hazard may have been created as a result, or that said condition purportedly may have caused the infant petitioner's birth defects (see Matter of Carpenter v. City of New York, 30 A.D.3d 594, 817 N.Y.S.2d 155;  Matter of Price v. Board of Educ. of City of Yonkers, 300 A.D.2d 310, 751 N.Y.S.2d 286).

Finally, the petitioners failed to demonstrate that the appellants were not prejudiced in their ability to investigate the incident and prepare a defense as a result of the petitioners' delay in providing notice of the specific facts of the claim, and the prejudice to the appellants is apparent from the record (see Breeden v. Valentino, 19 A.D.3d 527, 798 N.Y.S.2d 79;  Matter of Flores v. County of Nassau, 8 A.D.3d 377, 777 N.Y.S.2d 739;  Alexander v. City of New York, 2 A.D.3d 332, 769 N.Y.S.2d 267;  Igneri v. New York City Bd. of Educ., 303 A.D.2d 635, 756 N.Y.S.2d 783;  Matter of Lorseille v. New York City Hous. Auth., 295 A.D.2d 612, 744 N.Y.S.2d 880).

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