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Supreme Court, Appellate Division, Fourth Department, New York.


Decided: October 07, 2011

PRESENT:  CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ. Hodgson Russ LLP, Buffalo (Julia M. Hilliker of Counsel), for Respondent–Appellant. O'Brien Boyd, P.C., Williamsville (Christopher J. O'Brien of Counsel), for Claimant–Respondent.

 Supreme Court did not abuse its discretion in granting claimant's application for leave to serve a late notice of claim upon respondent (see Education Law § 3813[2–a];  General Municipal Law § 50–e[5];  Matter of Melissa G. v. North Babylon Union Free School Dist., 50 A.D.3d 901, 902, 855 N.Y.S.2d 276).   The claim seeks damages from respondent for injuries allegedly sustained by claimant as the result of alleged sexual abuse by a male teacher employed by respondent.   At the time of the alleged sexual abuse, claimant was seven or eight years old.   Claimant alleges, inter alia, that respondent was negligent in supervising that teacher and in failing to create and implement policies to prevent and address such abuse.

 The record establishes that claimant had a reasonable excuse for her delay in serving the notice of claim based upon her infancy at the time the notice of claim should have been served (see Matter of Trusso v. Board of Educ. of Jamestown City School Dist., 24 A.D.3d 1302, 805 N.Y.S.2d 909), along with the refusal of her legal guardians to initiate a claim on her behalf at that time.   Claimant, moreover, filed the instant application the very day after her 18th birthday (see Matter of Meredithe C. v. Carmel Cent. School Dist., 192 A.D.2d 952, 953, 597 N.Y.S.2d 199).   The record further establishes that, during the time period in which the alleged sexual abuse occurred with respect to claimant, respondent conducted an investigation of the teacher's conduct based upon accusations of sexual abuse made by other students.   That conduct by the teacher resulted in his arrest, prosecution and conviction, and was the basis for civil actions initiated against respondent on behalf of those students.   We conclude, therefore, that respondent had actual notice of the essential facts underlying the instant claim within a reasonable time (see Matter of Drozdzal v. Rensselaer City School Dist., 277 A.D.2d 645, 646, 716 N.Y.S.2d 435;  Matter of Kelli A. v. Galway Cent. School Dist., 241 A.D.2d 883, 884–885, 660 N.Y.S.2d 228;  Meredithe C., 192 A.D.2d at 953, 597 N.Y.S.2d 199).   Finally, we conclude that there has been no substantial prejudice to respondent based on the delay and that, indeed, the evidence submitted by respondent fails to demonstrate that its ability to defend itself against the claim has been impaired (see Mindy O. v. Binghamton City School Dist., 83 A.D.3d 1335, 1337–1338, 921 N.Y.S.2d 696;  Matter of Andrew T.B. v. Brewster Cent. School Dist., 18 A.D.3d 745, 748, 795 N.Y.S.2d 718).

It is hereby ORDERED that the order so appealed from is affirmed without costs.

I respectfully dissent and would reverse the order granting the application to serve a late notice of claim.   In deciding an application for leave to serve a late notice of claim, Supreme Court is to consider the factors set forth in General Municipal Law § 50–e(5), but those factors are “nonexhaustive” and the decision whether to grant the application “compels consideration of all relevant facts and circumstances” (Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 539, 814 N.Y.S.2d 580, 847 N.E.2d 1154).   The “key factors for the court to consider ․ are whether the claimant has demonstrated a reasonable excuse for the delay, whether [respondent] acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would substantially prejudice [respondent] in maintaining a defense on the merits” (Le Mieux v. Alden High School, 1 A.D.3d 995, 996, 767 N.Y.S.2d 348).

Here, the only factor weighing in favor of granting the application is that claimant demonstrated a reasonable excuse for her delay in serving a notice of claim.   Although claimant reported the abuse to her parents and the police, her parents decided not to commence a civil action on her behalf.   On her 18th birthday, claimant retained the attorney who brought this application.   While the delay of service was not solely caused by the infancy “since there was no indication that [claimant] lacked the capacity to complain and make the abuse known” (Matter of Doe v. Goshen Cent. School Dist., 13 A.D.3d 526, 526–527, 787 N.Y.S.2d 75), I agree with the majority that her excuse for the delay is reasonable (see generally Williams, 6 N.Y.3d at 538, 814 N.Y.S.2d 580, 847 N.E.2d 1154).   In my view, however, the remaining factors weigh heavily against granting the application.   Claimant failed to establish that respondent had timely actual notice of the claim, a factor on which courts place great emphasis (see Williams, 6 N.Y.3d at 535, 814 N.Y.S.2d 580, 847 N.E.2d 1154;  Santana v. Western Regional Off–Track Betting Corp., 2 A.D.3d 1304, 1304–1305, 770 N.Y.S.2d 258, lv. denied 2 N.Y.3d 704, 778 N.Y.S.2d 774, 811 N.E.2d 36;  Matter of Riordan v. East Rochester Schools, 291 A.D.2d 922, 923, 737 N.Y.S.2d 202, lv. denied 98 N.Y.2d 603, 745 N.Y.S.2d 502, 772 N.E.2d 605).   Although respondent was aware that its teacher-employee abused several students, there is no evidence to suggest that it ever knew that claimant was one of the victims until almost a decade after the alleged abuse occurred (see Doe, 13 A.D.3d at 527, 787 N.Y.S.2d 75;  cf. Matter of Trotman v. Rochester City School Dist., 67 A.D.3d 1484, 889 N.Y.S.2d 359;  Joyce P. v. City of Buffalo, 49 A.D.3d 1268, 852 N.Y.S.2d 895).   I further agree with respondent that claimant's almost decade-long delay in seeking leave to serve a late notice of claim substantially prejudices its ability to investigate the alleged abuse and prepare a defense with respect to claimant (see Matter of Friend v. Town of W. Seneca, 71 A.D.3d 1406, 895 N.Y.S.2d 895).