Sterling v Valley Stream 24 U.F.S.D.

[*1] Sterling v Valley Stream 24 U.F.S.D. 2009 NY Slip Op 51229(U) [24 Misc 3d 1202(A)] Decided on May 22, 2009 Supreme Court, Nassau County Lally, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 22, 2009
Supreme Court, Nassau County

Brian Sterling, an infant under the age of 14 by his mother and natural guardian Susan Campbell, Petitioner(s),

against

Valley Stream 24 U.F.S.D., Respondent(s).



3522/09



plaintiff's attorney - Malone, Tauber & Sohn, Freeport, NY

Ute W. Lally, J.

Upon the foregoing papers, it is ordered that this motion by petitioner for an order pursuant to General Municipal Law §50-e(5) granting leave to file a late notice of claim is denied.

Petitioner herein seeks leave to file a late notice of claim against respondent school district arising out of an occurrence which happened on September 12, 2008 at approximately 5:00 p.m. at respondent's school premises known as Brooklyn Avenue School. Infant petitioner was a student participating at an after school program in the lunch room of said school which was operated at the school, with the respondent's permission, by the J.C.C. of the Greater Five Towns (hereinafter JCC).

At the time of the occurrence it is claimed that infant [*2]petitioner was playing around with another student when he was caused to fall to the floor, sustaining injury. It is uncontroverted that he was participating at said program which was staffed by JCC. After the occurrence, when infant plaintiff was in the hallway, the principal of said school, Dr. Scott Comis, who was working late, observed the infant in the hall. When told that the JCC staff was unable to contact the boy's parents Dr. Comis called the petitioner mother and advised her that her son was injured in the after school program. He did no investigation as to the happening of the occurrence, nor as to the nature of the injuries,

General Municipal Law §50-e requires that in order to commence an action against a public corporation such as a school district a claimant must serve a notice of claim upon said public corporation within ninety days from the date of the occurrence from which the claim arises. Education Law §3813 makes General Municipal Law §50-e applicable to claims against a school district. The purpose of said statute is to protect against stale and unwarranted claims and to give the school district a reasonable opportunity to investigate the circumstances of the occurrence in order to avoid surprise.

General Municipal Law §50-e(5) permits the filing of a late notice of claim, upon leave of the court, when claimant sufficiently demonstrates it has met certain factors. Those mandated factors to be considered by the court in determining whether such an application should be granted are: 1) whether the public corporation acquired actual knowledge of the essential facts constituting the claim within ninety days of the occurrence or a reasonable time thereafter; 2) whether the injured party was an infant or mentally or physically incapacitated and said incapacity occasioned the delay in serving the notice of claim; 3) whether the petitioner has a reasonable excuse for the delay; and 4) whether the public corporation was prejudiced by the delay (see Williams v Nassau County Med. Ctr, 6 NY3d 531; Cohen v Pearl River UFSD, 51 NY2d 256; Formisano v Eastchester UFSD, 59 AD3d 543; Lucero v New York City H & H Corp., 33 AD3d 977; Andrew T.B. v Brewster Central S.D., 18 AD3d 745; Termini v Valley Stream UFSD No. 13, 2 AD3d 866.

Based upon the facts presented it appears to the satisfaction of this court that petitioners have failed to [*3]sustain their burden relative to the mandated factors. Although the school principal was aware of an occurrence, nothing has been established to demonstrate that he was aware of how it occurred or that he in any way investigated himself or caused anyone from the school district to investigate the happening of the occurrence (Portnov v City of Glen Cove, 50 AD3d 1041). In addition, although the injured petitioner is an infant, no circumstances have been proffered which would establish that the failure to timely file a notice of claim was due to his infancy. Thus, there has been a failure to demonstrate the existence of a reasonable excuse for the delay in the notice of claim. Finally, there has been nothing offered which would persuade the court of the absence of prejudice.

Parenthetically it should be noted that General Municipal Law §50-e requires that a notice of claim must state "the time when, the place where and the manner in which the claim arose" (General Municipal Law §50-3(2), see Brown v City of New York, 95 NY2d 389, 393). The statutory requirements are satisfied when the notice of claim describes the occurrence with specific particularity to enable a proper investigation and assess the merits of the claim (Ingle v N.Y.C. Transit Auth., 7 AD3d 574). Taking into account that a school district is not an insurer of the safety of its students for it cannot reasonably supervise and control all of students' movements and activities (Demos Santos v Medford, N.Y.S.D., 19 AD3d 480) and the fact that the infant plaintiff was under the supervision of the JCC in an after school program, where the allegations of negligence contained in the proposed notice of claim all appear to be based in lack of supervision as opposed to any defective condition of the respondent school's premises, this court is hard pressed to find where any valid claim against respondent school district has been alleged.

Therefore, petitioner's application is denied.

Dated: __________________ _______________________________

J.S.C.