| Matter of Place v Beekmantown Cent. School Dist. |
| 2010 NY Slip Op 00054 [69 AD3d 1035] |
| January 7, 2010 |
| Appellate Division, Third Department |
| In the Matter of Rose T. Place, as Guardian ad Litem for ChildDoe, an Infant, Respondent, v Beekmantown Central School District et al.,Appellants. |
—[*1] Kelly & Leonard, L.L.P., Ballston Spa (Thomas E. Kelly of counsel), for Clinton CountyDepartment of Social Services, appellant. Martin, Harding & Mazzotti, L.L.P., Niskayuna (Keith J. Starlin of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Supreme Court (McGill, J.), entered May 6, 2009 inClinton County, which granted petitioner's application pursuant to General Municipal Law§ 50-e (5) for leave to file a late notice of claim.
In early 2004, following a "good touch"/"bad touch" puppet presentation at respondentCumberland Head Elementary School where eight-year-old Child Doe attended, the childinformed the presenter that his stepfather had been inappropriately touching him. The presenterbrought the child to a school counselor, who interviewed the child. While there are conflictingversions of what transpired in that meeting, there is evidence that the child told the schoolcounselor that his stepfather was touching his genitals and had threatened to kill the child or hismother if he told anyone. The school counselor then contacted a caseworker from respondentClinton County Department of Social Services (hereinafter DSS), who was allegedly assigned to[*2]the elementary school attended by the child. Neither theextent of the communication between the school counselor and the DSS caseworker nor thecaseworker's role at the school are developed in the record. Further indicators of abuse allegedlycame to the attention of a school social worker in early 2006; yet, appropriate authorities werenot notified until mid-2007 after a friend of the child stated to school personnel that the childwas complaining of repeated sexual abuse by his stepfather.
The stepfather was eventually arrested and convicted in March 2008 on a host of sex-relatedcrimes perpetrated against the child. In September 2008, petitioner was appointed guardian adlitem for the child, who had been previously placed in the custody of his maternal grandparents.In November 2008, petitioner sought leave to file a late notice of claim against respondents.Supreme Court granted the application. Respondents appeal.
"It is well settled that Supreme Court has broad discretion in deciding whether to grant anapplication for leave to file a late notice of claim pursuant to General Municipal Law §50-e" (Matter of Lanphere v County of Washington, 301 AD2d 936, 937 [2003]).Although the application generally must be made within the one year and 90-day statute oflimitations, respondents do not contest the applicability herein of the toll for infancy (see Matter of Hinton v New Paltz Cent.School Dist., 50 AD3d 1414, 1415 [2008]; see generally Matter of Eberhard v Elmira City School Dist., 6 AD3d971, 972 [2004]). Factors weighed in considering whether the application should be grantedinclude, among others, timely knowledge by respondents of the essential facts, petitioner'sexcuse for the delay and the potential prejudice to respondents resulting from the delay (see Matter of Schwindt v County ofEssex, 60 AD3d 1248, 1249 [2009]; see generally General Municipal Law§ 50-e [5]; Education Law § 3813 [2-a]).
Here, there is evidence in the record reflecting that respondents had knowledge during therelevant time of serious allegations by the child regarding his stepfather. Petitioner's excuse as tothe delay in pursuing a civil action includes the young age of the child and, after criminalproceedings were commenced, the distress the child endured during such proceedings, includingbeing removed from his home and eventually placed with his grandparents. Despite the passingof considerable time, we are unpersuaded that there was significant prejudice to respondents.The key witnesses are ostensibly identifiable and available. It appears that most are stillemployed by respondents and some testified at the stepfather's criminal trial without apparentdifficulty recalling germane events.
Respondents further contend that petitioner failed to establish a meritorious cause of actionas to each of them. Leave to file a late notice of claim is, of course, "not appropriate for apatently meritless claim" (Matter ofCatherine G. v County of Essex, 3 NY3d 175, 179 [2004]). The contention of theschool, respondent Beekmantown Central School District and respondent Board of Education insuch regard is unpersuasive since it is premised upon the school counselor's assertion that she isa trained mandatory reporter and that the child did not relay adequate information to her tonecessitate reporting. This assertion is disputed by evidence in the record indicating thatadequate information was supplied by the child to her in 2004.
The claim against DSS appears more attenuated since it is not totally clear from this recordwhether the DSS caseworker had sufficient contact and knowledge to trigger the mandatoryreporting statute as to her (see Social Services Law § 413). The standard of proofat this procedural point, however, does not require certainty of the merits for the claim tosurvive. There are allegations—although broad and unexplained—of the caseworkerbeing assigned to the [*3]school. The role of the DSScaseworker, as well as the nature and extent of the information she received, is not fullydeveloped in the record. The only affidavit in opposition from DSS was by an attorney who didnot have personal knowledge of the pertinent facts. We are unpersuaded that this limited recordestablished a patently meritless claim and, accordingly, Supreme Court did not abuse itsdiscretion in granting petitioner's application.
Cardona, P.J., Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the order isaffirmed, with costs.