| Matter of Trotman v Rochester City School Dist. |
| 2009 NY Slip Op 08664 [67 AD3d 1484] |
| November 20, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Kyle O. Trotman, Appellant, v Rochester CitySchool District, Respondent. |
—[*1] Charles G. Johnson, Rochester (Cara M. Briggs of counsel), forrespondent-respondent.
Appeal from an order of the Supreme Court, Monroe County (John J. Ark, J.), enteredJanuary 17, 2009. The order denied claimant's application for leave to serve a late notice ofclaim.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the application is granted and the notice of claim is deemed timely served nuncpro tunc.
Memorandum: We conclude that Supreme Court abused its discretion in denying claimant'sapplication for leave to serve a late notice of claim. Although claimant failed to offer areasonable excuse for the delay in serving a notice of claim, that delay is not fatal inasmuch asrespondent had actual notice of the facts underlying the claim and was not substantiallyprejudiced by the delay (see Matter of Lindstrom v Board of Educ. of Jamestown City SchoolDist., 24 AD3d 1303 [2005]; Hale v Webster Cent. School Dist., 12 AD3d 1052[2004]). Claimant, a student in respondent school district, alleged in support of his motion thathe was sexually abused by one of respondent's employees, and that the alleged abuse occurredbetween February 2006 and July 2006. The record establishes that the respondent acquired actualknowledge of the abuse no later than January 2007, when the employee in question was arrestedon criminal charges and was suspended without pay. There is no support for the conclusoryassertions of respondent that the delay in filing the notice of claim impeded its ability toinvestigate the incident or to interview witnesses (see Matter of Gilbert v Eden Cent. SchoolDist., 306 AD2d 925, 926-927 [2003]). Once respondent was advised of the criminalcharges asserted against its employee, respondent should have conducted a prompt investigationof the incidents underlying the charges (see Matter of Bird v Port Byron Cent. SchoolDist., 231 AD2d 916 [1996]). " 'Having failed to do so, respondent cannot now be heard tocomplain that the late filing of [the] claim will prejudice its preparation of a defense' "(id.; see Matter of Courtney Nicole R. v Moravia Cent. School Dist. [appeal No.2], 28 AD3d 1134, 1135 [2006]). Present—Smith, J.P., Peradotto, Green, Pine and Gorski,JJ.