Recitation, as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF #s: 1-9; 10-12; 13-18; 19-21; 22-26. DECISION and ORDER Petitioner filed an Order to Show Cause requesting leave to file a late notice of claim. The proposed notice of claim asserts claims for conscious pain and suffering and wrongful death against Respondents URBAN DOVE TEAM CHARTER SCHOOL a/k/a TEAM BROOKLYN, URBAN DOVE CHARTER SCHOOLS, THE URBAN DOVE, INC., (“Urban Dove”) and RESPONDENTS THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF EDUCATION to recover for the death of infant D.L. resulting from a shooting. Respondents Urban Dove oppose the motion on the grounds that they never acquired actual knowledge of the essential facts giving rise to the claims and would therefore be substantially prejudiced in their defense, and that the claims are without merit. Respondents THE CITY OF NEW YORK (“City”) and THE NEW YORK CITY DEPARTMENT OF EDUCATION (“DOE”) oppose the motion on the grounds that the City and DOE are an improper party to this action as they did not own, operate, control, or maintain the premises of Respondent Urban Dove or any of the students attending Urban Dove on April 29, 2021. The City and DOE also argue that petitioner does not meet the criteria for a late notice of claim motion to be granted as against them. On April 29, 2021, D.L., an infant student at Urban Dove, was shot and killed at the time of the school’s dismissal at approximately 2:30pm. Carlene Watt, D.L.’s mother, was appointed Administrator of the Estate of D.L. on April 8, 2022. A notice of claim was filed on July 6, 2022. Petitioner argues the notice of claim was timely as to the wrongful death action because it was filed within 90-days of the appointment of the Administrator. Petitioner also argues that there would be no prejudice to Respondents if Petitioner is granted leave to file a late notice of claim as to the conscious pain and suffering claims because Respondent had actual notice of the facts giving rise to the claim at the time of the shooting because Respondents Urban Dove had notice of a potential danger to D.L. prior to the shooting, it happened in such close proximity to school property during dismissal of school, faculty witnessed the shooting, and the school helped the New York City Police Department with their investigation. When considering a request for leave to file a late notice of claim the court must consider the underlying theory of the claim(s) being brought. Pursuant to General Municipal Law §50-e, “(a) timely and sufficient notice of claim is a condition precedent to asserting a tort claim against a municipality or public benefit corporation.” Se Dae Yang v. New York City Health and Hosps. Corp., 140 AD3d 1051, 1052 [2d Dept 2016], citing General Municipal Law §50 — e[1][a]; Brown v. City of New York, 95 NY2d 389, 393 [2000]. “With respect to most torts, service of the notice of claim must be made within 90 days after the claim arises, but ‘in wrongful death actions, the [90] days shall run from the appointment of a representative of the decedent’s estate.’” Se Dae Yang, 140 AD3d at 1052; General Municipal Law §50 — e[1][a]). It is also well established that “a wrongful death action belongs to the decedent’s distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act (see EPTL 5-4.3)…In comparison, a personal injury action on behalf of the deceased under EPTL 11-3.2(b) seeks recovery for the conscious pain and suffering of the deceased and any damages awarded accrue to the estate (internal citation omitted). Such a claim is personal to the deceased and belongs to the estate, not the distributees…In short, the two causes of action are ‘predicated on essentially different theories of loss which accrue to different parties”‘ (internal citation omitted). Heslin v. County of Greene, 14 NY3d 67, 76-77 [2010]. Accordingly, the substance of the claim and the time to file a notice of claim differs as to the two distinct causes of action. Here, the notice of claim was timely filed as to the wrongful death claim 89 days after Petitioner was appointed Administrator of D.L.’s Estate. Therefore, Petitioner’s Order to Show Cause requesting Petitioner leave to file a late Notice of Claim against Urban Dove is GRANTED as to the wrongful death claim. As described above, the time to file a notice of claim differs between wrongful death claims and conscious pain and suffering claims. Service of a notice of claim regarding conscious pain and suffering, must be made within 90 days after the claim arises. See General Municipal Law §50 — e[1][a]. When determining whether to grant a petition for leave to serve a late notice of claim, the court must consider whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, (2) the petitioner was an infant at the time the claim arose and, if so, whether there was a nexus between the petitioner’s infancy and the failure to serve a timely notice of claim, (3) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (4) the public corporation was substantially prejudiced by the delay in its ability to maintain its defense on the merits. Matter of Lamprecht v. Eastport — South Manor Central School District, 129 AD3d 1084, 1085 [2d Dept 2015]; see Education Law § 3813[2 --- a]; General Municipal Law § 50 — e[5]; Williams v. Nassau County Med. Ctr., 6 NY3d 531, 538 [2006]; Matter of McLeod v. City of New York, 105 AD3d 744, 745 [2d Dept 2013]; Bazile v. City of New York, 94 AD3d 929, 930 [2d Dept 2012]; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147-153 [2d Dept 2008]. The determination of an application for leave to serve a late notice of claim is left to the sound discretion of the trial court. Matter of Ruiz v. City of New York, 154 AD3d 945, 946 [2d Dept 2017]. “Although the Supreme Court has ‘broad discretion’ to evaluate the factors set forth in General Municipal Law §50 — e(5), its determination must be supported by record evidence.” Parker v. City of New York, 206 AD3d 936, 937-938 [2d Dept 2022], citing E.R. v. Windham, 181 AD3d 736, 738 [2d Dept 2020], quoting Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 465 [2016]. It is well established that the Court of Appeals holds that “to enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a notice of claim.” Brown, 95 NY2d at 392. In particular, “(t)he General Municipal Law requires that the notice of claim set forth, among other things, ‘the nature of the claim’” (internal citations omitted). Conn v. Tutor Perini Corp., 174 AD3d 680, 682 [2d Dept 2019]. “In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves” (internal citations omitted). Matter of D’Agostino v. City of New York, 146 AD3d 880, 880-881 [2d Dept 2017]; see General Municipal Law § 50-e (5). The underlying claim in this case is negligence based on a breach of the school’s duty to supervise its students. “‘The most important factor based on its placement in the statute and its relation to other relevant factors is whether the [municipal] corporation acquired actual notice of the essential facts constituting the claim within 90 days of the accrual of the claim or within a reasonable time thereafter.’” Joseph v. City of New York, 208 AD3d 1324, 1326 [2d Dept 2022], citing Matter of Lugo v. GNP Brokerage, 185 AD3d 824, 825 [2d Dept 2020], quoting Matter of D’Agostino, 146 AD3d at 880. “While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance.’” Wieman-Gibson v. County of Suffolk, 206 AD3d 666, 667 [2d Dept 2022], citing Matter of Snyder v. County of Suffolk, 116 AD3d 1052, 1053 [2d Dept 2014], quoting Matter of Placido v. County of Orange, 112 AD3d 722, 723 [2d Dept 2013]. Here, Petitioner argues that Respondent Urban Dove acquired actual knowledge of the facts giving rise to the claim of conscious pain and suffering at the time of the shooting because Respondent was aware of the shooting itself and there are text messages from Coach Zay, a coach working at Urban Dove, to Petitioner inquiring about D.L.’s condition following the shooting, then about any funeral arrangements. Relevant to this determination, Petitioner argues that text messages from Coach Zay to Petitioner prior to the shooting evidence that Coach Zay was aware of the threat of violence and potentially dangerous situation for D.L. at school and was therefore personally involved in the situation giving rise to the claim. These text messages from Coach Zay to Petitioner referred to “ops” that D.L. was worried about at the school and suggested that early dismissal from school was an option for D.L. Through their submissions, Petitioner established that Respondent Urban Dove had timely notice of the facts underlying the claim. It is undisputed that Respondent Urban Dove was aware of the shooting as employees from Urban Dove witnessed the shooting at the time of dismissal. Text messages between Coach Zay and Petitioner days prior to the shooting, show that D.L. told Coach Zay that D.L. was worried about a potentially dangerous situation at the school and that early dismissal was an option. Additionally, there are text messages between Coach Zay and Petitioner after the shooting showing that Coach Zay visited D.L. at the emergency room and, after D.L.’s passing, Coach Zay inquired into funeral arrangements. As the negligence claim here is based on lack on supervision on the part of the school, the communication between the parent and the Coach evidence knowledge of the facts underlying the claim. Therefore, Petitioner established that Respondent Urban Dove acquired actual knowledge of the essential facts giving rise to the claim of conscious pain and suffering prior to the filing of the notice of claim on July 6, 2022. Petitioner bears the initial burden to show that a late notice of claim will not substantially prejudice Respondent. “[A] showing [of prejudice] need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice.” Matter of Ruiz, 154 AD3d at 947, quoting Matter of Newcomb, 28 NY3d at 466. Petitioner argues that since Respondent Urban Dove has known about the incident since the date of occurrence it has had ample notice and opportunity to investigate and can substantiate no prejudice by the granting of this application. Respondents Urban Dove state in their opposition that Respondents are not able to conduct the type of investigation into this matter that would have been pursued if the school had been on notice that it would be subject to future litigation. The court rejects this argument as, in addition to having actual knowledge of the facts giving rise to the claim of negligence, the school and its officials assisted the police with the investigation. Prejudice cannot be claimed here given the communications between the parent and coach as well as the fact that employees of the school witnessed the shooting. The school’s participation in the police investigation into the murder that took place near the school inevitably led to relevant information, including facts underlying the claim of negligence. Under these circumstances, the court finds that Petitioner has established that there can be no prejudice to Respondents Urban Dove. The court must also consider whether Petitioner was an infant at the time the claim arose and, if so, whether there was a nexus between Petitioner’s infancy and the failure to serve a timely notice of claim. While D.L. was an infant at the time of his death, Petitioner for the claim of conscious pain and suffering is D.L.’s mother and the Administrator of D.L.’s Estate, Carlene Watt. Petitioner was not an infant at the time of the incident. Further, there was no nexus between D.L.’s infancy at the time of his death, and the delay in filing a notice of claim in this action. See General Municipal Law §50 — e[5]. Petitioner must also demonstrate a reasonable excuse for the failure to serve a timely notice of claim. Petitioner’s excuse is that it took time for an Administrator to be appointed to D.L.’s Estate. However, as stated above, conscious pain and suffering is personal to the deceased and belongs to the estate, not the distributees. See Heslin, 14 NY3d at 76-77. Therefore, the notice of claim could have been filed prior to an administrator being appointed. Under the circumstances, the excuse, although weak, will not deter the court from its finding. Accordingly, Petitioner’s Order to Show Cause requesting leave to file a late Notice of Claim is GRANTED as to the conscious pain and suffering claim, as to Urban Dove as well as the wrongful death claim, as stated above. As to the City and the Department of Education, this court finds that these parties are improper parties to this case. As a charter school, Respondent Urban Dove is “an independent and autonomous public school” separate from the City of New York and the New York City Department of Education. See Education Law § 2853[1][c]. Respondent Urban Dove Charter School, located at 1256 East 21st Street in Brooklyn, NY is not owned, controlled, operated or managed by the City of New York or the New York City Department of Education. Therefore, the City of New York and the New York City Department of Education did not have a duty to own, control, manage or operate the school. Furthermore, the City and Department of Education established that it is not affiliated with Urban Dove and may not be held liable for any alleged negligence because the City and Department of Education did not owe Petitioner’s decedent a duty of care. As such, the City of New York and the New York City Department of Education are not parties to this case. Notwithstanding, the court additionally finds that the Petitioner’s submissions do not establish notice to the City and/or the Department of Education. Indeed, petitioner also fails to submit any evidence that the City and/or the Department of Education would not be prejudiced by this late filing. The importance of actual notice cannot be overlooked. See Matter of Lugo, 185 AD3d at 825; see also Matter of D’Agostino, 146 AD3d at 880. In conclusion, the Order to Show cause for leave to file a late notice of claim is GRANTED as to the wrongful death claims and the conscious pain and suffering claims as to Respondents URBAN DOVE TEAM CHARTER SCHOOL a/k/a TEAM BROOKLYN, URBAN DOVE CHARTER SCHOOLS, and THE URBAN DOVE, INC., and DENIED in its entirety as to Respondents THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF EDUCATION. This constitutes the decision and order of the court. Dated: February 17, 2023
