Doe v. Madrid-Waddington Cent. School Dist., MADRID-WADDINGTON

• Decision Date: 31 October 1996
• Docket Number: MADRID-WADDINGTON
• Citation: 232 A.D.2d 922,649 N.Y.S.2d 88
• Parties: , 114 Ed. Law Rep. 257 In the Matter of John DOE, Appellant, v.CENTRAL SCHOOL DISTRICT et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 88

649 N.Y.S.2d 88

232 A.D.2d 922, 114 Ed. Law Rep. 257

In the Matter of John DOE, Appellant, v. MADRID-WADDINGTON CENTRAL SCHOOL DISTRICT et al., Respondents.

Supreme Court, Appellate Division Third Department.

Oct. 31, 1996.

Poissant & Nichols P.C. (Kevin F. Nichols, of counsel), Malone, for appellant.

Arthur F. Grisham, Canton, for Madrid-Waddington Central School District, respondent.

D.J. and J.A. Cirando (John A. Cirando, of counsel), Syracuse, for Wilfred G. Boyea, respondent.

Before CREW, J.P., and WHITE, CASEY, YESAWICH and SPAIN, JJ.

YESAWICH, Justice.

Appeal from an order of the Supreme Court (Demarest, J.), entered January 9, 1995, which denied petitioner's application pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim against respondents.

In 1991, following an investigation of suspected child abuse, respondent Wilfred Boyea, a special education teacher formerly employed by respondent Madrid-Waddington Central School District (hereinafter the District), was suspended from his position and ultimately terminated after a disciplinary proceeding (see, Matter of Boyea v. Board of Educ. of Madrid-Waddington Cent. School Dist., 209 A.D.2d 852, 619 N.Y.S.2d 180, lv. denied85 N.Y.2d 804, 626 N.Y.S.2d 755, 650 N.E.2d 414). Boyea was thereafter convicted of two counts of sodomy in the first degree and seven counts of sexual abuse in the first degree (see, People v. Boyea, 222 A.D.2d 937, 636 N.Y.S.2d 136, lv. denied 88 N.Y.2d 934, 647 N.Y.S.2d 167, 670 N.E.2d 451).

Petitioner, one of Boyea's former students, moved by notice of motion dated June 30, 1994 for an order permitting him to serve a late notice of claim against the District, nunc pro tunc. In opposition, the District maintained, inter alia, that it had no notice of the allegations that form the basis for this suit until March 3, 1993, when petitioner disclosed Boyea's actions to a police detective investigating the claims of other students. Supreme Court denied the motion, prompting this appeal by petitioner. We affirm.

The resolution of an application for permission to file a late notice of claim is a matter left to the sound discretion of the trial court (see, Matter of Salyer v. Valley Cent. School Dist., 163 A.D.2d 782, 783, 558 N.Y.S.2d 746, lv. denied 78 N.Y.2d 851, 573 N.Y.S.2d 69, 577 N.E.2d 60). In exercising this discretion, the court must weigh several factors, including "whether the public corporation * * * acquired actual knowledge of the essential facts constituting the claim within [90 days] or within a reasonable time thereafter" (General Municipal Law § 50-e [5] ). Also to be considered are the petitioner's infancy, whether he or she has proffered a reasonable excuse for the delay, and whether there has been any resulting prejudice to the public corporation (see, General Municipal Law § 50-e [5]; Matter of Cure v. City of Hudson School Dist., 222 A.D.2d 879, 634 N.Y.S.2d 884; Matter of Salyer v. Valley Cent. School Dist., supra, at 783, 558 N.Y.S.2d 746).

Bearing in mind that petitioner's infancy "neither deprives the court of its discretion nor requires it to grant an application in every instance" (Matter of Meredithe C. v. Carmel Cent. School Dist., 192 A.D.2d 952, 953, 597 N.Y.S.2d 199), we cannot say that Supreme Court abused its discretion by denying petitioner's application. Although the nature of the allegations, coupled with the fact that Boyea, an authority figure to petitioner, "told [him] to 'trust me' and not to tell" (People v. Boyea, 222 A.D.2d 937, 938, 636 N.Y.S.2d 136, 137, supra ), adequately accounts for that portion of the delay which occurred before petitioner first disclosed the abuse, there is no satisfactory explanation for the remaining delay of almost a year and a half (see, Matter of Plante v. County of Rensselaer, 203 A.D.2d 835, 611 N.Y.S.2d 353; Matter of McAllister v. County of Nassau, 202 A.D.2d 670, 671, 609 N.Y.S.2d 294; Matter of Morgan v. City of Elmira, 115 A.D.2d 885, 887, 496 N.Y.S.2d 578, appeal dismissed 67 N.Y.2d 905, 501 N.Y.S.2d 814, 492 N.E.2d 1230; compare, Matter of Meredithe C. v. Carmel Cent. School Dist., supra, at 953, 597 N.Y.S.2d 199). As to this latter period, Supreme Court evidently was not persuaded by the assertion of petition...