Matter of Sutherland v County of Westchester
Annotate this CaseDecided on August 18, 2009
Supreme Court, Westchester County
In the Matter of the Claim of Kadeem Sutherland, An Infant Under the Age of Fourteen years, by His Father and Natural Guardian CARLOS SUTHERLAND, For Leave to Serve a Late Notice of Claim, Nunc Pro Tunc, 7/10/09 Claimants,
against
County of Westchester and MT. VERNON CITY SCHOOL DISTRICT, Respondents.
13547/09
Raphaelson & Levine Law Firm, P.C.
Attys. For Pet.
Pennsylvania Building
14 Penn Plaza, Suite 407
New York, New York 10122
Charlene M. Indelicato, Esq.
County Attorney, West. Co.
Michaelian Office Building
148 Martine Avenue
White Plains, New York 10601
O'Connor, McGuinness, Conte, Doyle & Oleson Attys. For Resp. Mt. Vernon CSD
One Barker Avenue, Suite 675
White Plains, New York 10601-1517
Mary H. Smith, J.
Upon the foregoing papers, it is Ordered and adjudged that this petition pursuant to General Municipal Law Section 50-e for an Order permitting late filing of a notice of claim is granted in part as to respondent County of Westchester and denied as to respondent Mt. Vernon City School District.
Petitioner alleges that, on January 27, 2009, infant petitioner Kadeem was in a special needs class participating in gym and that he had been injured when an assistant teacher "shoved him to the ground."Petitioner had retained counsel and, on March 23, 2009, his attorney had filed a Notice of Claim against the City of New York and The New York City Department of Education. This of course was improper, as the City of New York is not a proper party herein.
Petitioner presently is moving pursuant to General Municipal Law Section 50-e for an Order permitting his late filing of a notice of claim upon the correct municipal entities. In support thereof, [*2]petitioner argues that at bar is only a "slight delay," that he did file a timely notice of claim, albeit upon the wrong entities, that respondents had acquired actual notice of petitioner's claim on the very day the cause of action had accrued, and indeed they had conducted their own investigation and completed an incident report, that petitioner and his parents had met with the principal of the school and the allegedly offending teacher to discuss what had occurred and petitioner's "specific claims about the inappropriate nature of the teachers (sic) conduct and the general lack of appropriate supervision," that petitioner had been under the sole care of respondents at the time of the incident, that witnesses to the incident are respondents' employees and under their control and that respondents have not been and will not be prejudiced by the granting of said relief. In these circumstances, it is argued that to deprive petitioner the requested relief would constitute a grave injustice.
Respondent County of Westchester ("County") opposes the petition, arguing that it is a discreet municipal entity from the City of Mount Vernon and the Mount Vernon School District ("City" or "School"), with no legal nexus, and that it had not been involved nor connected with any investigation or interviewing of persons that may have been performed by the City, nor the preparation of any incident that had been prepared. According to the County, petitioner has failed to offer a "reasonable excuse" for failing to timely file the required notice of claim and that the clerical filing error of the notice of claim upon the City of New York is no type of excusable error warranting relief. Further, the County denies any actual knowledge of the incident and claims that it will be substantially prejudiced if petitioner is permitted to serve a late notice of claim upon it. Finally, the County argues that petitioner' s legal claim against the County lacks merit, as it has no control or legal responsibility over the operation of a city's school district, its employees and students.
The City also opposes the petition, arguing the petitioner woefully has failed to demonstrate entitlement to relief, having failed to proffer a reasonable excuse for failing to timely have served the correct municipal entity with his notice of claim. Further, the City argues that petitioner has failed to disclose "factually-adequate or legally-relevant surrounding circumstances" as to the meeting between the infant petitioner, his parents and the school principal, and that other than alleging a school investigation transpired, fails to "produce any information regarding the School's investigation of this incident. (Emphasis in original)." It is argued that the City is prejudiced because the incident "involves a date and time in the past that may result in loss of relevant witness identification and loss of memory that can prejudice the respondent's ability to investigate." Moreover, respondent City argues, supported by Principal Joseph Jordano's affidavit, that it had not been made aware of impending litigation but that had it had such knowledge it would have obtained in-depth interview and written statements from the gym teacher and teacher assistants present at the time of the incident.
Section 50-e, subdivision 1, of the General Municipal Law requires that a notice of claim be served upon a municipal corporation within ninety days after the accrual of a cause of action as a condition precedent to the commencement of an action where the underlying claims are founded upon tort. A plaintiff who fails to timely file may move for leave to serve a late notice of claim, as prescribed in General Municipal Law Section 50-e, subdivision 5.
In determining whether to permit service of a late
notice of claim, the court must consider all relevant
facts and circumstances, including whether (1) the [*3]
movant demonstrates a reasonable excuse for the failure
to serve a timely notice of claim, (2) the public
corporation acquired actual knowledge of the facts
constituting the claim within 90 days of its accrual or
a reasonable time thereafter, and (3) the delay would
substantially prejudice the public corporation in
defending on the merits (citations omitted).
Matter of Acosta v. City of
New York, 39 AD3d 629 (2nd Dept. 2007). It has been repeatedly recently held that
knowledge of an occurrence is not akin to the statutory requirement of knowledge of the
essential facts of the claim, see eg.
Catuosco v. City of New York, 62 AD3d 995 (2nd Dept. 2009); Matter of Felice v. Eastport/South Manor
Central School District, 50 AD3d 138 (2nd Dept. 2008), and that no one statutory factor
is determinative. See Burgess v. County
of Suffolk, 56 AD3d 769 (2nd Dept. 2008).
Applying the foregoing legal standard to the facts at bar, the Court finds that petitioner has failed to demonstrate entitlement to file a late notice of claim as against the County. Aside from this Court's agreement with the County that any liability on the County's part for the happening of this incident appears on this record to be tenuous at best, it is abundantly apparent that the County had absolutely no notice of petitioner's claim within the first ninety days following the accrual of his claim, that the City's knowledge of the occurrence and/or essential facts of the incident is not attributable to the County and that the County would be severely prejudiced in mounting a defense at this late date, more than six months after the incident, in first now attempting to undertake an investigation of this transitory incident and interview witnesses who are not in its control. See Bush v. City of New York, _ Misc 3d _, 2009 WL 1332535 (Kings. Co. Sup. Ct. 2009). Accordingly, the petition is denied with respect to relief against the County.
However, the Court finds that, while petitioner's excuse of law office failure for having failed to timely have filed his notice of claim against the correct municipal entity is wanting, see Roland v. Nassau County Dept. Of Social Services, 35 AD3d 477 (2nd Dept. 2006); Serrano v. New York City Housing Authority, 197 AD2d 694 (2nd Dept. 1993), that the City nevertheless had timely sufficient notice of the essential facts constituting petitioner's claim and that it will not be prejudiced in its defense of this action.
Indeed, it is clear that teachers, teacher assistants and/or other school employees were present at the time of the incident, that an incident report had been contemporaneously prepared and signed by the school principal, Mr. Jordano, that "Ms. Spady" and "Ms. Albert" were identified thereon as having been the supervisors present at that time, and that this report also stated that there were other witnesses to the incident. Particularly persuasive to this Court' s finding that the City had timely notice of the essential facts of petitioner's claim is the fact that the infant and his parents had a meeting with the principal Mr. Jordano following this incident, which meeting the infant's parent's claim also had been attended by the assistant teacher that allegedly caused the infant's injury, although the Court observes that the date of this meeting is nowhere stated in either party's papers. Notably absent from Mr. Jordano's affidavit in opposition is any statement denying that the infant's parents during this meeting had brought to his attention their belief that the incident had occurred as a result of the infant's having been pushed by the teacher's assistant and a general lack of adequate supervision in the gym at that time. Also notable is Mr. Jordano's failure to have specifically [*4]addressed and denied the infant's parent's claim that he had been advised by school officials that the "matter was investigated prior" to the meeting. A careful reading of Mr. Jordano's affidavit discloses that Mr. Jordano merely states therein that had the school received a notice of claim it would have performed "an in-depth interview" and procured written statements from the witnesses; there is no outright denial by Mr. Jordano that the school in fact had conducted some investigation of the incident and interviewing of witnesses.
The Court further notes that it is now less than seven months after the incident and that, other than a gym teacher who no longer is employed by the School, all other employee witnesses apparently are available for further "in-depth" interviewing. The Court cannot find that the City, in these circumstances, has been unduly prejudiced in its ability to investigate and maintain a defense on this claim.
Accordingly, the petition is granted as to respondent City. The Proposed Notice of Claim
annexed to petitioner's moving papers is deemed the Notice of Claim and same is further deemed
timely served as of the date of entry of this Order.
Dated: August, 2009
White Plains, New York
_________________________________
MARY H. SMITH
J.S.C.
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