| Mindy O. v Binghamton City School Dist. |
| 2011 NY Slip Op 03170 [83 AD3d 1335] |
| April 21, 2011 |
| Appellate Division, Third Department |
| Mindy O. et al., Individually and as Parents and Guardians of CaseyO., an Infant, Respondents, v Binghamton City School District,Appellant. |
—[*1] Butler & Butler, Vestal (Matthew C. Butler of counsel), for respondents.
Garry, J. Appeal from that part of an order of the Supreme Court (Lebous, J.), enteredSeptember 8, 2010 in Broome County, which partially granted plaintiffs' cross motion for, amongother things, leave to file a late notice of claim.
Plaintiffs allege that, as a result of defendant's negligent supervision, their child (born in1997) was physically assaulted and forced or coerced into sexual activity by fellow students onschool grounds on repeated occasions during the 2008-2009 school year, when the child wasattending sixth grade in one of defendant's schools. In July 2009, plaintiffs served a notice ofclaim on defendant on their own behalf and that of the child. Defendant rejected the notice ofclaim for, among other things, being untimely. Later in July 2009, plaintiffs re-served the noticeof claim, and defendant again rejected it. Plaintiffs commenced this action on November 2, 2009by filing a summons and complaint, which was not served upon defendant until March 25, 2010(see CPLR 306-b). Defendant moved to dismiss the complaint for, among other things,failure to comply with the notice of claim provisions of General Municipal Law §§50-e and 50-i. Plaintiffs cross-moved for relief including leave to file a late notice of claim andan order extending the time to serve the complaint. Supreme Court granted defendant's motion todismiss, without prejudice, but also partially granted plaintiffs' cross motion by permitting themto serve a late notice of claim and thereafter file a new complaint asserting the claims advancedon behalf [*2]of the child, but not as to plaintiffs' claims on theirown behalf. Defendant appeals.
Supreme Court is vested with broad discretion in determining whether to grant an applicationfor leave to file a late notice of claim (see Matter of Place v Beekmantown Cent. School Dist., 69 AD3d1035, 1035-1036 [2010]; Matter of Lanphere v County of Washington, 301 AD2d936, 937 [2003]). Such an application must be made before the expiration of the one year and90-day limitations period (see General Municipal Law §§ 50-e, 50-i [1] [c]),but the statute of limitations is tolled until the 18th birthday of an infant plaintiff (see Matterof Place v Beekmantown Cent. School Dist., 69 AD3d at 1036; Matter of Hinton v New Paltz Cent. SchoolDist., 50 AD3d 1414, 1415 [2008]). The court must make a discretionary determinationbased on statutory factors, including whether a reasonable excuse exists for the delay, whetherthe defendant had actual knowledge of the facts constituting the claim, and whether the delaycaused substantial prejudice to the defendant (see Matter of Apgar v Waverly Cent. School Dist., 36 AD3d 1113,1114 [2007]; Matter of Scuteri v Watkins Glen Cent. School Dist., 261 AD2d 779,779-780 [1999]).
As to whether a reasonable excuse existed, plaintiffs allege that they first learned that thechild had been sexually assaulted in the summer of 2009, after asking her about certain drawingsthey found in her room. The notice of claim was filed shortly thereafter in July 2009. We havepreviously held that a reasonable excuse exists for delay in filing a notice of claim where thenature and extent of a child's injuries are not immediately apparent (see Matter of Welch vBoard of Educ. of Saratoga Cent. School Dist., 287 AD2d 761, 763 [2001]). Here, plaintiffs'lack of awareness that the child had been injured at all is a reasonable excuse.
Notably, the record indicates that the notice of claim may not have been untimely as to all theevents alleged therein. Plaintiffs' claims were not, as defendant suggests, confined to events thattook place in September 2008. Instead, plaintiffs alleged that the first physical assault on thechild took place in September 2008, that additional physical assaults occurred on unspecifieddates thereafter, and that the child was also subjected to an "ongoing assault of sexual activitythat [took] place over months and months during the [2008-2009] school year." While the noticewas undeniably vague as to the dates of these events, more specific information was furnished inshort order by a police investigation initiated by plaintiffs and completed—and reported toschool officials—in mid-August 2009. In the course of the investigation, police officersinterviewed the child and several classmates who had allegedly engaged in sexual activity withher. The children gave detailed, consistent accounts of participating in sexual activity on schoolproperty on at least two occasions—the first in April or May 2009, and the second in June2009, less than 90 days before the notice of claim was served on defendant. In addition to castingdoubt on the lateness of the notice of claim, we find that the police report provided defendantwith actual knowledge of at least some of the facts constituting the claim approximately twomonths after the most recent assault occurred and, thus, "within a reasonable time" after theclaim arose (Matter of Hinton v New Paltz Cent. School Dist., 50 AD3d at 1416; seeMatter of Drozdzal v Rensselaer City School Dist., 277 AD2d 645, 646 [2000]).
Turning to the issue of prejudice, defendant contends that the memories of the childreninvolved in the incident are likely to have faded and that it has no documents or records related tothe alleged incidents. However, this has not been established as defendant has not interviewedthe children (see Matter of Apgar v Waverly Cent. School Dist., 36 AD3d at 1115).Further, the records of the police investigation indicate that, as of July and August 2009, thechildren involved were able to remember the alleged events in detail; any fading of theirmemories that [*3]may have since occurred would apparentlyresult from defendant's election not to interview them or conduct a hearing pursuant to GeneralMunicipal Law § 50-h at that time.[FN1]Moreover, in April 2010, several of defendant's employees had sufficient recall to supplyaffidavits describing the child's moodiness, her behavior during lunch hour, her mother'sconcerns about changes in her habits, and other events during the 2008-2009 school year,including a May 2009 incident in which a guidance counselor asked the child directly whethershe was pregnant after her teachers heard rumors that she was sexually involved with aclassmate.[FN2]Accordingly, defendant has failed to put forth specific evidence that its ability to defend againstthe claim has been impaired (see Matter of Hinton v New Paltz Cent. School Dist., 50AD3d at 1416; Matter of Apgar v Waverly Cent. School Dist., 36 AD3d at 1115;Matter of Lanphere v County of Washington, 301 AD2d at 939).
As to defendant's contention that no nexus was established between the delay in filing thenotice of claim and the child's infancy, we are unpersuaded that the child's initial reluctance toreport or admit the alleged assaults was unrelated to her infancy. In any event, the absence ofsuch a nexus is not fatal where, as here, defendant had actual notice of at least some of thepertinent facts and has not shown prejudice (see Matter of Hinton v New Paltz Cent. SchoolDist., 50 AD3d at 1416). Finally, upon review of the record, we do not find the claim ofnegligent supervision "patently meritless" (Matter of Place v Beekmantown Cent. SchoolDist., 69 AD3d at 1037). Accordingly, we find no abuse of discretion in allowing plaintiffsto file a late notice of claim.
Defendant also contends that Supreme Court erred by granting plaintiffs an extension of timeto serve the complaint. This argument misconstrues the court's decision and order; in accord withCPLR 306-b, as service of the summons and complaint was not made upon defendant within 120days after filing, the court properly dismissed the complaint without prejudice. The decision alsoexpressly anticipates that plaintiffs will recommence the action as to the infant's claims, as theircross motion for leave to file a late notice of claim was granted, and we find no error in thisrespect.
Spain, J.P., Lahtinen and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: Defendant could have conductedsuch a hearing without waiving its assertion that the notice of claim was untimely (see Hallett v City of Ithaca, 8 AD3d870, 871 [2004], lv denied 3 NY3d 608 [2004]).
Footnote 2: Both the child and the classmateallegedly denied that any sexual activity had occurred. Plaintiffs allege that defendant'semployees did not inform them of the interview with the counselor or of another interview with aschool nurse.