This is an action for personal injuries allegedly sustained by infant Diamond Bodrick, a passenger on a school bus on February 10, 2003, which occurred when the infant was struck by glass and debris as a result of a broken window caused by a student outside of the bus throwing an object. The petitioners seek leave to serve a late notice of claim against respondents.

"When a petitioner is seeking leave to serve a late notice of claim, the court must consider whether the petitioner has demonstrated a reasonable excuse for his or her failure to serve a timely notice of claim, whether the municipality to be served acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual (see, General Municipal Law § 50-e[1] ) or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits (see, Matter of Shapiro v. County of Nassau, 208 AD2d 545, 616 N.Y.S.2d 786; Levette v. Triborough Bridge & Tunnel Auth., 207 AD2d 330, 615 N.Y.S.2d 421; Carbone v. Town of Brookhaven, 176 AD2d 778, 575 N.Y.S.2d 105)." Fee v. County of Nassau, 269 AD2d 489; see also, Clark v. City of New York, [*2]292 AD2d 605, 606; Vandaatselaar v. Town of Hempstead, 283 AD2d 434; Russo v. Monroe-Woodbury Cent. School Dist., 282 AD2d 465; Matter of Salter v. Housing Authority, 251 AD2d 585; O'Mara v. Town of Cortlandt, 210 AD2d 337.

Here, petitioners, in addition to failing to proffer a reasonable excuse for the delay, have failed to demonstrate that respondents had actual knowledge of the events or would suffer no substantial prejudice if the application is granted. It is axiomatic that actual knowledge requires more than an employees' awareness that an accident occurred. This was made clear by the Appellate Division, Second Department, in Morrison v. New York City Health & Hospitals Corp., 244 AD2d 487, in which the Court stated:

Even if employees of the respondents were present at the accident site at the time of a petitioner's accident, as was allegedly the case herein, such would not establish that the respondents acquired actual knowledge of the essential facts underlying the claim (citations omitted). '[W]hat satisfies the statute is not knowledge of the wrong, but notice of the claim. The municipality must have notice or knowledge of the specific claim and not general knowledge that a wrong has been committed' (Sica v. Board of Educ. of City of NY, 226 AD2d 542, 543, 640 N.Y.S.2d 610; Washington v. City of New York, 72 NY2d 881, 532 N.Y.S.2d 361, 528 N.E.2d 513; Matter of Hubbard v. City School Dist. of Glen Cove, 204 AD2d 721, 613 N.Y.S.2d 29; Shapiro v. County of Nassau, 208 AD2d 545, 616 N.Y.S.2d 786).

Moreover, the delay has prejudiced respondents' ability to investigate the claim in that it has deprived respondents of the opportunity to find and interview witnesses, and comprehensively examine the accident site or reconstruct the circumstances existing at the time of the accident. There is no question that with the transitory nature of changes in personnel and students within a school system, it would be difficult to undertake a meaningful investigation. See, Yearusskaya v. New York City Transit Authority, 279 AD2d 583. It thus is beyond cavil that a grant of the petition would prejudice respondents in their defense by the delay between the time the claim arose and the time the petitioner commenced the proceeding for leave to serve a late notice of claim. See, Clark v. City of New York, supra; Gillum v. County of Nassau, 284 AD2d 533, 534; Yearusskaya v. New York City Transit Authority, supra.

Upon weighing the statutory factors set forth in General Municipal Law § 50-e, as well as considering all other relevant facts and circumstances, this Court is constrained to deny petitioners' application for leave to serve a late notice of claim. Petitioners failed to demonstrate a reasonable excuse for their delay, actual knowledge of the claim on the part of respondents, and the absence of prejudice thereto. Accordingly, the application is denied and the petition hereby is dismissed.[*3]

Dated:  June 8, 2004

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J.S.C.