Sica v. Board of Education

226 A.D.2d 542, 640 N.Y.S.2d 610, 1996 N.Y. App. Div. LEXIS 4329

Opinions

In a proceeding for leave to serve late notices of claim pursuant to General Municipal Law § 50-e (5), the Board of Education of the City of New York and Murray Brenner separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Richmond County (Cu-sick, J.), dated August 3, 1994, as granted the branch of the petitioners’ motion which was for leave to serve late notices of claim on behalf of the infant claimants.

Ordered that the order is reversed insofar as appealed from, as a matter of discretion, with one bill of costs, and that branch of the motion which is for leave to serve late notices of claim on behalf of the infant claimants is denied.

On this record the Supreme Court improvidently exercised its discretion in granting leave to serve late notices of claim (see, General Municipal Law § 50-e [5]).

In determining whether to grant or deny a motion to serve a late notice of claim, it is well settled that the court must review all relevant factors. The key factors are whether a petitioner has met his or her burden to show (1) that the municipality acquired actual knowledge of the essential facts of the claim within the statutory 90-day period or a reasonable time thereafter, (2) a reasonable excuse for the delay, and (3) that the municipality was not substantially prejudiced by the delay in its defense on the merits (see, Matter of Diaz v City of New York, 211 AD2d 789; Matter of O'Mara v Town of Cortlandt, 210 AD2d 337; D’Anjou v New York City Health & Hosps. Corp., 196 AD2d 818; Matter of Morris v County of Suffolk, 88 AD2d 956, affd 58 NY2d 767).

The petitioners have failed to submit evidence that the appellants had actual knowledge of the claims of the infant claimants within 90 days of the occurrence or within a reasonable time thereafter. What satisfies the statute is not knowledge of the wrong but notice of the claim. The municipality must have notice or knowledge of the specific claim and not general knowledge that a wrong has been committed (Washington v City of New York, 72 NY2d 881; Matter of Hubbard v City School Dist., 204 AD2d 721).

Furthermore, the appellants would be substantially prejudiced if leave to serve late notices of claim was granted. The appellants would be unable to refute the petitioners’ claim that the city-wide reading and math tests of the infant claimants were tampered with because the actual city-wide reading and math tests taken by the infant claimants had been destroyed, and it would be impossible to show that the tests of these specific students were not tampered with.

The case of Helbig v City of New York (212 AD2d 506), relied upon by the dissent, is distinguishable since the issue in that case was whether the complaint stated a cause of action and not whether leave to serve a late notice of claim should be granted. The extrapolation of Helbig to the instant case cannot overcome the fact that the petitioners failed to show that the appellants had timely notice of the claims and that the appellants would not be prejudiced by service of late notices of claim. Balletta, J. P., O’Brien and Sullivan, JJ., concur.