        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

729
CA 15-01904
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


IN THE MATTER OF CLAIM OF KIMBERLY TURLINGTON,
ON BEHALF OF NICOLE TURLINGTON, AN INFANT,
CLAIMANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BROCKPORT CENTRAL SCHOOL DISTRICT,
RESPONDENT-APPELLANT.


HARRIS BEACH PLLC, PITTSFORD (CRISTINA A. BAHR OF COUNSEL), FOR
RESPONDENT-APPELLANT.

R. BRIAN GOEWEY, ROCHESTER, FOR CLAIMANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Renee
Forgensi Minarik, A.J.), entered July 6, 2015. The order granted the
application of claimant for leave to serve a late notice of claim.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the application is
denied.

     Memorandum: Supreme Court abused its discretion in granting
claimant’s application for leave to serve a late notice of claim
pursuant to General Municipal Law § 50-e (5) approximately one year
after the incident in which her daughter was injured occurred. “It is
well settled that key factors for the court to consider in determining
an application for leave to serve a late notice of claim are whether
the claimant has demonstrated a reasonable excuse for the delay,
whether the municipality acquired actual knowledge of the essential
facts constituting the claim within 90 days of its accrual or within a
reasonable time thereafter, and whether the delay would substantially
prejudice the municipality in maintaining a defense on the merits” (Le
Mieux v Alden High Sch., 1 AD3d 995, 996). “While the presence or
absence of any single factor is not determinative, one factor that
should be accorded great weight is whether the [municipality] received
actual knowledge of the facts constituting the claim in a timely
manner” (Matter of Henderson v Town of Van Buren, 281 AD2d 872, 873;
see Hilton v Town of Richland, 216 AD2d 921, 921). It is well
established that “[k]nowledge of the injuries or damages claimed . .
. , rather than mere notice of the underlying occurrence, is necessary
to establish actual knowledge of the essential facts of the claim
within the meaning of General Municipal Law § 50-e (5)” (Lemma v Off
Track Betting Corp., 272 AD2d 669, 671), and the claimant has the
                                 -2-                           729
                                                         CA 15-01904

burden of demonstrating that the respondent had actual timely
knowledge (see Matter of Riordan v East Rochester Schs., 291 AD2d 922,
923, lv denied 98 NY2d 603). Here, in support of her application for
leave to serve a late notice of claim, claimant presented evidence
that respondent was aware of the order of protection requiring, inter
alia, that one of its students stay away from the school attended by
claimant’s daughter. Nevertheless, claimant failed to meet her burden
of establishing that respondent had actual knowledge that her daughter
sustained any injury as a result of any violation of the order of
protection. Specifically, claimant did not apprise respondent of any
injuries until she served a proposed notice of claim with her late
notice of claim application, which set forth that her daughter
sustained “emotional distress,” “lost scholarships” and “lost
opportunities,” and she did not establish that respondent otherwise
acquired knowledge of any such injuries.

     Furthermore, while there is no apparent prejudice to respondent
stemming from the delay in this case, claimant failed to provide any
excuse for the failure to serve a timely notice of claim (see
generally Matter of Felice v Eastport/South Manor Cent. Sch. Dist., 50
AD3d 138, 152-153).




Entered:   October 7, 2016                     Frances E. Cafarell
                                               Clerk of the Court
