A New York State appeals court has reversed a trial court and found that a plaintiff student-athlete, who was struck by a discus while she was running around the track, should not have been granted leave to serve a late notice of claim.
Elizabeth Monfort, a member of the girls’ varsity lacrosse team at South Side High School in Rockville Centre, was running “laps around the track” on March 30, 2007 when she was “blind-sided by a flying discus.”
Monfort alleged that the discus was thrown by a member of the boys’ junior varsity lacrosse team. She subsequently sued the Rockville Centre Union Free School District on a theory of inadequate supervision. Along the way, a New York State Supreme Court granted her petition for permission to serve a late notice of claim upon the District.
In support of the petition, Monfort failed to submit her own affidavit or other verified pleading, despite the fact that she would presumably have been able to offer information with respect to exactly when her coach, or some other employee of the high school or of the District, first became aware of the injury to her nose caused by the discus.
Instead, she submitted only her attorney’s affirmation, in which the attorney made merely conclusory allegations to the effect that the District had been on notice of the March 30, 2007 incident, “since it occurred.” Moreover, the petition was not supported by any other testimonial or documentary evidence establishing that the District obtained notice of the essential facts of the claim within 90 days of the accident or a reasonable time thereafter, and counsel’s uncorroborated assertions are no substitute for evidence (see e.g. Zuckerman v City of New York, 49 NY2d 557, 563, 404 N.E.2d 718, 427 N.Y.S.2d 595).
The appeals court wrote that “while we acknowledge that ‘neither the presence nor the absence of any one factor is determinative’ (Catterson v Suffolk County Dept. of Health Servs., 49 AD3d 792, 794, 854 N.Y.S.2d 205) in determining a petition for leave to serve a late notice of claim, there is no proof here that, within the 90 day post-accident period or within a reasonable time thereafter, the District received any notice that the infant petitioner had been injured (see Matter of Kumar v City of New York, 52 AD3d 517, 860 N.Y.S.2d 144; cf. Matter of McLean v Valley Stream Union Free School Dist. 30, 48 AD3d 571, 852 N.Y.S.2d 227), much less that it had received notice of the ‘facts that underlie the legal theory . . . on which liability is predicated in the notice of claim’ (Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 148, 851 N.Y.S.2d 218).
“After considering ‘all the relevant facts and circumstances’ (General Municipal Law § 50-e[5]), including those specifically enumerated in the statute, we conclude that it was an improvident exercise of discretion for the Supreme Court to have granted the petition for permission to serve a late notice of claim.”
In the Matter of Elizabeth Monfort, etc. v Rockville Centre Union Free School District; S.Ct.N.Y., App. Div., 2d Dept.; (Index No. 16262/07), 2008-01516, 2008 NY Slip Op 8494; 2008 N.Y. App. Div. LEXIS 8282; 11/5/08
Attorneys of Record: (for appellant) Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel). (for respondent) Thomas F. Liotti, Garden City, N.Y. (Edward A. Paltzik of counsel).
