Conger v. Ogdensburg City School District

Petitioner, born in 1991, was in the eighth grade at Ogdensburg Free Academy in December 2006, when he fell on the ice while playing broomball during a physical education class. After the class ended, petitioner went to the school nurse complaining that he had hurt his left elbow in the fall. The nurse observed some bruising and swelling but that petitioner otherwise had full range of motion of his arm and elbow. Although petitioner returned to class, he went to a local hospital later that day and was diagnosed with a broken left elbow. In the interim, petitioner’s mother notified the school nurse that petitioner was being taken to the emergency room, and the nurse completed a “Notification of Student Injury” report. In January 2007, petitioner’s mother submitted an accident claim form indicating that petitioner had broken his elbow. Thereafter, in August 2010, petitioner sought leave to file a late notice of claim. Supreme Court denied the application and petitioner now appeals.

We affirm. “It is well settled that Supreme Court has broad discretion in deciding whether to grant an application for leave to file a late notice of claim pursuant to General Municipal Law § 50-e, providing the application is made prior to the expiration of the one year and 90-day statute of limitations” (Matter of Lanphere v County of Washington, 301 AD2d 936 , 937 [2003] [citations omitted]; see General Municipal Law § 50-e [5]; accord Chirse v City School Dist. of Albany, 83 AD3d 1232 , 1233 [2011]). Where, as here, “the putative [petitioner] is an infant, the statute of limitations is tolled until his or her 18th birthday” (Matter of Lanphere v County of Washington, 301 AD2d at 937 ; accord Matter of Hinton v New Paltz Cent. School Dist., 50 AD3d 1414 , 1415 [2008]).^[1] In deciding whether to permit a late filing of a notice of claim, the court “must consider certain statutory factors, including whether the respondent had actual knowledge of the essential facts constituting the claim, whether there exists a reasonable excuse for any delay in filing the notice of claim and whether the delay has caused substantial prejudice to any defense to the claim” (Matter of Apgar v Waverly Cent. School Dist., 36 AD3d 1113 , 1114 [2007]; accord Matter of Dewey v Town of Colonie, 54 AD3d 1142 , 1142 [2008]). Moreover, “[n]o one factor ... is dispositive of the issue” (Matter of Dewey v Town of Colonie, 54 AD3d at 1143 ).