Matter of Saxon v Department of Educ. of the City of N.Y.

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Matter of Saxon v Department of Educ. of the City of N.Y. 2012 NY Slip Op 30470(U) February 27, 2012 Sup Ct, NY County Docket Number: 111598/11 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY L - Index Number : 111598/2011 SAXON, SHAMEAH L/+'P vs. NYC DEPARTMENT OF EDUCATION SEQUENCE NUMBER : 001 1 4 MOTION SEQ. NO. LEAVE SERVE LATE NOT O F CLAIM The followlng papers, numbered I to Notlce of MotlonlOrder to Show Cause Aniwsrlng Affldavlta \ , were read on thls motion tolfor itfiJc -Affldavlts - Exhiblts \V>:'"JC [ { L t t *O~U.O)C[C<\~ IWd. INds). INO(#)- - Exhlblta Replylng Affldavlts A- Upon the foregolng papers, it ir ordered that this motlon it Dated: 5 1 ,J.S.C. FE 2 7 I. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION is: 3. CHECK IF APPROPRIATE: ................................................ W O N - F I N A L DISPOSITION CASE DISPOSED RANTED 0SElTLE ORDER DO NOT POST DENIED GRANTED IN PART OTHER SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PART 5 X _____ll______ffr__-_------------11--1-----------_------------------------- In the Matter of the Application of: SHAMEAH SAXON, Infant by her mother and natural guardian, MONIQUE BERRY, and MONIQUE BERRY, individually, Petitioners, Index No. 111598/11 Motion date: Calendar no.: 11/22/11 103 DECISION & OFtDER For Leave to Serve a Late Notice of Claim, Nunc Pro Tunc, -against- DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK and GYL-MARIA BARTHOLOMEW, FEB 29 2012 For petltloners: Victor Goldblum, Esq. Rimland & Associates 225 Broadway, Suite 1606 New York, NY 10007 212-374-0680 NEW YORK CCJlJWTY CLERKS OFFICE By notice of petition dated October 26,201 1,and submitted on default, petitioners move pursuant to General Municipal Law (GML) $5 50-e(5) and 50-e(6) for an order deeming their notice of claim timely served and granting them leave to amend it. I. BACKGROUND On December 17,2010, infant petitioner, Shameah Saxon, was allegedly assaulted at CS 200, located at West 147'h Street and Seventh Avenue in Manhattan, by respondent Gyl-Maria Bartholomew, a teacher at the school, (Affirmation of Victor Goldblum, Esq., dated Oct. 10, 201 1). ... . [* 3] The same day, a complaint about the incident was made to the New York City Police Department, and in the corresponding police report, the incident is described as follows: At t/p/o deft did grab c/v by shirt and did pull and push while sitting on chair. Deft then did slap c/v in back of head with open hand. C/v was fearful and did complain of headache. Incident was witnessed by two classmates who did write a not[e] now in possession of princip[al] Mr. Bolton. Mr. Martino, after school program YMCA, was informed of incident by c/v. Ms. Wilson, a teacher at CS200, also informed by c/v. Deft is part of ATR, after school teacher reserve program . . . . (Id., Exh. A). On April 29,201 1, petitioners served respondents with a notice of claim, describing the incident as follows: On December 15,2010 at [aplproximately 2:OO p.m., at CS 200, located at 147* Street and 7 Avenue, New York, NY, infant claimant was assaultedhattered by teacher GylMaria Bartholomew. Intentional andor reckless/wanton act of Gyl-Maria Bartholomew. Claim of negligent hiring, retention, and failure to monitor by Board of Education. Also failure to properly supervise/protect infant claimant as loco parentis. Copy of NYPD Complaint Report annexed hereto. ( I d , Exh. B). By letter dated May 3 1,2011, the Office of the Comptroller of the City of New York acknowledged receipt of petitioners notice of claim. 11. CONTENTIONS Petitioners assert that respondents will be prejudiced by neither their late filing nor their error as to the date of the incident in their notice of claim, as respondents obtained actual knowledge of the facts underlying petitioners claims through their employees involvement in and knowledge of the incident. 2 [* 4] 111, ANALYSIS A. Leave to serve late notice of claim Pursuant to GML 55 50-e(l)(a) and 504, in order to commence a tort action against a municipality or a municipal agency, a claimant must serve it with a notice of claim within 90 days of the date on which the claim arose. The court may extend the time to file a notice of claim, and in deciding whether to grant the extension, it must consider, inter alia, whether the municipality or agency acquired actual knowledge of the essential facts constituting the claim within the 90-day deadline or a reasonable time thereafter, whether the delay in serving the notice of claim substantially prejudiced the municipality or agency in its ability to maintain a defense, and whether the claimant has a reasonable excuse for the delay. (GML 9 50-e[5];Perez ex rel. Torres v New York City Health & Hosps. Corp., 8 1 AD3d 448,448 [ 1st Dept 20 111). In considering these factors, none is dispositive (Pearson ex re1 Pearson v New York City Health & Hosps. Corp., 43 AD3d 92,93 [ l a Dept 20071, ufld 10 NY3d 852 [2008]), and given their flexibility, the court may take into account other relevant facts and circumstances (Wadzington v City ofNew York, 72 NY2d 881,883 [1988]). 1. Actual knowledge A claimant bears the burden of demonstrating the public entity's actual knowledge of the essential facts underlying her claim. (Walker v New York City Tr. Auth., 266 AD2d 54, 54-55 [ 1" Dept 19991). A public entity has such knowledge when it has knowledge of the facts underlying the theory on which liability is predicated. (Mutter of Grande v City o New Yo&, 48 AD3d 565, f 566 [2d Dept 2008l). Generally, the facts are those which demonstrate a connection between the injury or event and any wrongdoing on the part of the entity. (Matter of Werner v Nyack Union 3 [* 5] Free School Dist., 76 AD3d 1026, 1027 [2d Dept 20101). The entity must have notice or knowledge of the specific claim and not merely general knowledge that a wrong has been committed. (Matter of Devivo v Town of Carmel, 68 AD3d 991,992 [2d Dept 20091; Matter of Wright v City ofNew York, 66 AD3d 1037, 1038 [2d Dept 20091; Arias v New York City Health & Hosps. Corp., 50 AD3d 830, 832-833 [2d Dept 20081, lv denied 12 NY3d 738 [2009]; Pappalardo v City of New York, 2 AD3d 699,700 [2d Dept 20031; Chattergoon v New York City Hous. Auth., 161 AD2d 141, 142 [l" Dept 19901, lv denied 76 NY2d 875 [1990]). As actual knowledge may be imputed to a municipality where its employees engaged in the conduct giving rise to a claim (Gibbs v City ofNew York, 22 AD3d 717, 719-20 [2d Dept 20051; Picciano v Nassau County Civil Serv. Comm 'n,290 AD2d 164, 174 [2d Dept 20011; Ayala v City of New York,189 AD2d 632,633 [latDept 1993]), respondents obtained actual knowledge of the facts underlying petitioners' claims within 90 days of their accrual. Moreover, as petitioners served respondents with their notice of claim one and one-half months after expiration of the 90-day period, respondents obtained actual knowledge at that time, as well. (See Matter of Gershanow v Town of Clarkson, 88 AD3d 879 [2d Dept 201 11 [notice of claim served without leave one month after deadline provided agency with actual knowledge]; Berlone Commissioning v City ofNew York, 27 AD3d 222 [ lstDept 2006 ] [notice of claim served without leave less than two months after expiration of 90-day period provided agency with actual knowledge]; Matter o Harrison v New York City Hous. Auth., 188 AD2d 367 [ 1'' f Dept 19921 [agency obtained actual knowledge from notice of claim received one month after expiration of 90-day period]). 4 [* 6] I 2. Preiudice I As petitioners established that City obtained actual knowledge of the facts underlying her claims, she has also demonstrated the absence of prejudice. (See Williamsex re1 Fowler v Nussau County Med. Ctr., 6 NY3d 53 1,539 [2006] [ Proof that the [respondent] had actual knowledge is an important factor in determining whether [it] is substantially prejudiced by . , . a delay. ]). 3. Reasonable excuse As petitioners established both actual knowledge and the absence of prejudice, and as the lack of a reasonable excuse is not, standing by itself, sufficient to deny an application for leave to serve and file a late notice of claim (Ansong, 308 AD2d 333), petitioners are entitled to an order deeming their notice of claim timely served, nuncpro tunc, regardless of their failure to explain their delayed filing. B, Leave to amend notice of claim Pursuant to GML 0 50-e(6): [a]t any time after the service of a notice of claim and at any stage of an action or special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby. Petitioners are entitled to amend their notice of claim to correct the date of the accident for the reasons set forth above. (See supra, I1I.A.1,2). CONCLUSION Accordingly, it is hereby ORDERED, that petitioners motion for an order deeming her notice of claim timely 5 [* 7] served, nuncpro tunc, is granted; and it is further OmERED, that petitioners motion for an order granting them leave to amend their notice of claim is granted. ENTER: DATED: February 27,20 12 New York, New York 6

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