IN RE: Kinny ANDERSON

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IN RE: Kinny ANDERSON, etc., et al., respondents, v. NEW YORK CITY DEPARTMENT OF EDUCATION, et al., appellants.

Decided: January 30, 2013

DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Susan B. Eisner of counsel), for appellants. Okun Oddo & Babat, P.C., New York, N.Y. (Matthew W. Saliba of counsel), for respondents.

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the New York City Department of Education, Public School 346, Franklin Douglas VIII Academy, and the City of New York appeal from an order of the Supreme Court, Kings County (Velasquez, J.), dated October 26, 2011, which granted the petition.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the petition is denied, and the proceeding is dismissed.

In determining whether to grant leave to serve a late notice of claim, the court must consider whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant was an infant at the time the claim arose and, if so, whether there was a nexus between the claimant's infancy and the delay, (3) the claimant had a reasonable excuse for the failure to serve a timely notice of claim and the subsequent delay in seeking leave to serve a notice of claim, and (4) the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see Education Law § 3813[2–a]; General Municipal Law § 50–e[5]; Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 535, 814 N.Y.S.2d 580, 847 N.E.2d 1154; Bazile v. City of New York, 94 A.D.3d 929, 929–930, 943 N.Y.S.2d 131; Matter of Diggs v. Board of Educ. of City of Yonkers, 79 A.D.3d 869, 869–870, 912 N.Y.S.2d 688; Troy v. Town of Hyde Park, 63 A.D.3d 913, 914, 882 N.Y.S.2d 159).

In their petition and supporting papers, the petitioners did not proffer any excuse for their failure to serve a timely notice of claim upon the appellants. The excuses they did proffer, which were improperly raised for the first time in a reply affidavit (see Matter of Bell v. City of New York, 100 A.D.3d 990, 954 N.Y.S.2d 229), were either unsupported by medical evidence or did not constitute reasonable excuses (see Matter of Minkowicz v. City of New York, 100 A.D.3d 1000, 954 N.Y.S.2d 628; Matter of Taylor v. County of Suffolk, 90 A.D.3d 769, 770, 934 N.Y.S.2d 348). Furthermore, the comprehensive injury report prepared by the New York City Department of Education on an unspecified date, which merely indicated that the infant petitioner sprained his ankle during basketball class in a gymnasium, did not establish that the appellants had actual knowledge of the essential facts underlying the petitioners' claim that the appellants were negligent, inter alia, in their ownership, operation, maintenance, supervision, and control of the school and its students (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d at 535, 814 N.Y.S.2d 580, 847 N.E.2d 1154; Matter of Castro v. Clarkstown Central School Dist., 65 A.D.3d 1141, 1142, 885 N.Y.S.2d 508; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 150, 152, 851 N.Y.S.2d 218; Matter of Scolo v. Central Islip Union Free School Dist., 40 A.D.3d 1104, 1106, 838 N.Y.S.2d 577; Matter of Doyle v. Elwood Union Free School Dist., 39 A.D.3d 544, 833 N.Y.S.2d 204). Moreover, the petitioners failed to meet their initial burden of showing a lack of prejudice or rebutting the appellants' claims that they will be substantially prejudiced by the more-than-three-month delay after the expiration of the 90–day statutory period (see Matter of Khalid v. City of New York, 91 A.D.3d 779, 937 N.Y.S.2d 124; Buchanan v. Beacon City School Dist., 79 A.D.3d 961, 962, 915 N.Y.S.2d 101; Matter of Liebman v. New York City Dept. of Educ., 69 A.D.3d 633, 893 N.Y.S.2d 141; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 152, 851 N.Y.S.2d 218). Accordingly, the petition for leave to serve a late notice of claim should have been denied.

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