Upon the foregoing papers, the applications of petitioners Lisa Bramble and Robert Bramble (Motion Seq. Nos. 001 and 002) for (1) leave to serve a late Notice of Claim and (2) to compel discovery from defendant New York City Department of Education (hereinafter "DOE") are denied.

This matter arises out of an incident which is alleged to have occurred on March 20, 2012, in Room 131 B of Susan E. Wagner High School on Staten Island. Petitioner, Lisa Bramble (hereinafter "petitioner"), a special education teacher and grade advisor at the high school, claims to have sustained extensive personal injuries when she attempted to shield a student from an assault by an unruly group of fellow students who had appeared at her office door. In her proposed Notice of Claim petitioner alleges, inter alia, that "at approximately 9:10 a.m....a number ofviolent, feral and angry students gathered outside Room 131 B [i.e., her office] and attempted to invade [the] room in order to attack and forcibly remove a student [who was eating breakfast therein]". She further alleges that when petitioner "saw the commotion and the threat posed to her guest student, [she] rushed to the doorway...to intercept and restrain the attacking students while struggling to release the rope from the door handle ^[FN1] in order to close the door on the attacking students and thwart the violent intrusion"^[FN2] (see Petitioners' Exhibit A, paras 14, 15).

In support of the application, petitioner maintains that she delayed the filing of a Notice of Claim beyond 90 days after the incident(i.e., on or before June 19, 2012) because she did not [*2]appreciate the full extent of her injuries ^[FN3]; that the DOE had knowledge of the essential facts of the claim within two or three days of the occurrence through the "Written Statement Forms" filed by petitioner and her two eye-witnesses; and that the DOE has not been prejudiced by the delay, since it was the DOE's own custodial staff which supplied the rope as a make-shift remedy to keep the door from slamming shut instead of repairing the broken door's closing mechanism.

In opposing the application, the DOE argues, inter alia, that it has been substantially prejudiced by petitioners' delay in that it prevented respondent from conducting a prompt investigation of the incident; that it had no knowledge of the essential facts constituting the nature of petitioner's claim or theory of recovery prior to the filing of the Summons and Complaint on April 30, 2013 (almost one year late); and that petitioner's failure to appreciate the seriousness of the exacerbation of her admittedly pre-existing back injury on or before June 19, 2012 is no reasonable excuse for her failure to file a timely Notice of Claim ^[FN4].

As previously indicated, the applications are denied.

In order to commence a tort action against the DOE, a claimant is statutorily required to file a Notice of Claim within 90 days ofthe alleged injury (see Education Law §3813[1]; General Municipal Law §50-e[1][a]; Williams v. Nassau County Med. Ctr., 6 NY3d 531; Matter of McLeod v. City of New York, 105 AD3d 744, 745). Nevertheless, pursuant to those same statutes (see Education Law §3813[2-a]; General Municipal Law §50-e[5]), a court may grant a prospective claimant leave to file a late Notice of Claim upon the consideration of various factors, chief among which is whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of the alleged injury or a reasonable time thereafter (see Education Law §3813[2-a]; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147; Matter of Morris v. County of Suffolk, 88 AD2d 956, affd 58 NY2d 767). Among the other relevant factors to be considered are whether (1) the claimant was an infant; (2) there was a reasonable excuse for the delay, and (3) the delay has substantially prejudiced the public corporation in mounting a defense to the action (see Matter of Dell'Italia v. Long Is. R.R. Corp., 31 AD3d 758; Matter of Sica v. Board of Educ. of City of NY, 226 AD2d 542). Upon each of these issues, the burden of proof rests upon the petitioner (see e.g. Matter of Sica v. Board of Educ. of City of NY, 226 AD2d at 542). [*3]

Here, petitioner has failed to establish that the DOE acquired actual knowledge of the essential facts constituting this claim within 90 days after the claim arose or within a reasonable time thereafter(see Matter of Formisano v. Eastchester Union Free School Dist., 59 AD3d 543, 544). Although the DOE was clearly aware of the incident and petitioner's injury, the "Written Statement Forms" prepared by petitioner and her two para-professionals failed to indicate how the fact of her injury as the result of a spontaneous outburst by a trio of unrulystudents which took place outside her office relate to the legal claim now asserted, i.e., that her injury was the result of the DOE's negligent failure to timely repair the broken door-closing mechanism for Room 131 B. The relevant statutes contemplate not only knowledge of the facts, but also how they relate to the legal claim to be asserted (id. at 544; see Matter of Sparrow v. Hewlett-Woodmere Union Free School Dist., __AD3d__, 2013Slip Op 6696; Matter of Felice, 50 AD3d at 147-148; see also Matter of Joseph v. City of New York, 101 AD3d 721, 722; Matter of Werner v. Nyack Union Free School Dist., 76 AD3d 1026; Matter of Doyle v. Elwood Union Free School Dist., 39 AD3d 544, 545).

Likewise, petitioner has failed to establish that the DOE would not be substantially prejudiced in its defense on the merits should leave be granted, or to rebut its assertion that her extensive delay has deprived it of the opportunity to locate witnesses and conduct a timely and meaningful investigation of the alleged broken-door incident (see Matter of Scolo v. Central Islip Union Free School Dist., 40 AD3d 1104, 1106; Matter of Price v. Board of Educ. of City of Yonkers, 300 AD2d 310, 311).

Finally, petitioner's conclusory assertion that she did not immediately appreciate the nature and severity of her injury fails to constitute a reasonable excuse for her 13 month delay in filing in the absence of supporting medical evidence(see Matter of Sparrow, ___ AD3d___, 2013 NY Slip Op 6696, supra). Here, petitioner's claim is belied by the medical reports and self-made log attached to her petition, which reveal, inter alia, that she had a pre-existing back injury and was aware of the need for corrective surgery fully 11 months prior to making this application (see Matter of Wright v. City of New York, 66 AD3d 1037, 1038; Matter of Kumar v. City of New York, 52 AD3d 517, 518).

In light of the foregoing, petitioners' request for discovery (Motion Seq. No 002) is denied as academic.

Accordingly, it is

ORDERED, that petitioners' motions are denied in their entirety.

E N T E R,

___/s/__________________________

Hon. Thomas P. Aliotta

J.S.C.

Dated: November 14, 2013

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