Jennifer C. v. Shoreham-Wading River Cent. Sch. Dist., Index No.: 41038-10

• Court: New York Supreme Court
• Writing for the Court: DENISE F. MOLIA
• Decision Date: 27 June 2011
• Docket Number: Index No.: 41038-10
• Citation: Jennifer C. v. Shoreham-Wading River Cent. Sch. Dist., Index No.: 41038-10 (N.Y. Sup. Ct. Jun 27, 2011)
• Parties: JENNIFER C, an infant by her Father and Natural Guardian, MICHAEL C, and MICHAEL C, Individually, Plaintiffs, v. SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, Defendant.

2011 NY Slip Op 31989

JENNIFER C, an infant by her Father and Natural Guardian, MICHAEL C, and MICHAEL C, Individually, Plaintiffs, v. SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, Defendant.

Index No.: 41038-10

SUPREME COURT - STATE OF NEW YORK I.A.S. Part 39 - SUFFOLK COUNTY

Dated: June 27. 2011

PRESENT: Hon DENISE F. MOLIA, Justice

CASE DISPOSED: YES

MOTION R/D: 1/27/11

SUBMISSION DATE: 2/18/11

MOTION SEQUENCE NO.: 001 MG

002 XMD

Attorney for Plaintiff

O'Donnell & Fox, PC

Attorneys for defendant

Congdon Flaherty O'Callaghan Reid

The OMNI

Upon the following papers filed and considered relative to this matter:

Notice of Motion dated December 10, 2010; Affirmation dated December 10, 2010; Exhibits A and B annexed thereto; Affirmation in Opposition dated January 20, 2011; Exhibits A and B annexed thereto; Notice of Cross Motion dated January 20, 2011; Affirmation dated January 20, 2011; Affidavit dated January 18, 2011; Infant Affidavit dated January 14, 2011; Exhibits A and B annexed thereto; Affirmation in Opposition dated February 7, 2011; Exhibit C annexed thereto; Reply Affirmation dated February 15, 2011; Exhibits A through C annexed thereto; and upon due deliberation; it is

ORDERED, that the motion by defendant, pursuant to CPLR 3211(a)(5), Education Law §3813, General Municipal Law §50-e, and General Municipal Law §50-i, for an Order dismissing the action as against defendant on the basis that the plaintiffs have failed to file a timely notice of claim, and that the claim of Michael C, is time-barred, is granted; and it is further

ORDERED, that the cross motion by plaintiffs, pursuant to CPLR 208, and General Municipal Law §§ 50-e(5) and 50-i, for an Order deeming the filing of the late Notice of Claim nunc pro tunc, or in the alternative, for leave to serve a late notice of claim, is denied.

The underlying action arises from an incident that is alleged to have occurred in or about the first or second week of November 2008. It is alleged that Jennifer C, a student at the Shoreham-Wading River High School ("District"), was sexually assaulted by two unidentified students in a bathroom at the school. A notice of claim dated December 3, 2009, was served by claimants upon the defendant School District on or about December 8, 2009, more than one year after the incident. A summons and complaint was served on the School District on behalf of the infant plaintiff and her father, individually, on or about November 23, 2010. A 50(h) hearing was conducted of both the infant plaintiff and her father on May 20, 2010. The defendant now moves for a dismissal of the action based upon the failure of the plaintiffs to serve a timely Notice of Claim. The plaintiffs have cross moved for leave to serve a late Notice of Claim, nunc pro tunc.

The infant plaintiff has submitted an affidavit in which she describes the event which is the subject of the proposed late Notice of Claim as follows:

During the first or second week of November 2008, while attending the Shoreham-Wading River High School, the infant plaintiff was granted permission to go to the bathroom prior to her third period class. When she entered the bathroom located on the bottom floor of the B-wing, she was grabbed by two unidentified males, who put her in a headlock, put her face down on the floor, stabbed her right arm with a hypodermic needle thereby paralyzing her, and proceeded to rape and sexually assault her "for what seemed to be at least 30 minutes." The plaintiff could not yell for help and does not recall hearing anyone at or outside the door. When the attack was finished, the attackers carved the letters "G" and "T" onto her left wrist, and then left the bathroom. There were no witnesses other than the infant plaintiff and the unknown assailants.

The plaintiff said that she felt shame, embarrassment, and total helplessness about the event and as a result, did not tell anyone until the beginning of the 2009 school year, when she related the incident to her boyfriend. The plaintiff subsequently informed her parents of the event on September 23, 2009 and after seeing a psychiatrist approximately three times, began counseling with a social worker. The plaintiff states that she is still being counseled at her home, which is now in Maine.

The plaintiffs now seek permission to serve a late Notice of Claim, alleging that a Notice of Claim was served on the District within ninety days of Michael C's knowledge of the incident. The defendants have opposed the motion, maintaining that a proper basis has not been demonstrated to permit service of a late Notice of Claim, and noting that the statutory period has run on the derivative claim of Michael C.

Education Law §3813 and General Municipal Law §50-i provide that an action for personal injury alleged to have been sustained as the result of the negligence of a school district may not be maintained against the school district unless a Notice of Claim shall have been served upon such district. General Municipal Law §50-e requires a Notice of Claim to be served within ninety (90) days after the claim arises. A timely Notice of Claim is a condition precedent to the commencement of a tort action against a school district. See. General Municipal Law §§50-e(1)(a) and 50-i(1). Service of a notice of claim beyond the ninety day statutory period without leave of the court is a nullity. Santiago v. City of New York, 294 A.D.2d 483, 742 N.Y.S.2d 566; Kokkinos v. Dormitory Auth. of the State of N.Y., 238 A.D.2d 550, 657 N.Y.S.2d81.

General Municipal Law §50-i provides that the statute of limitations for personal injury actions against a school district is one year and ninety days. Since the date of the alleged occurrence was in November 2008, the statute of limitations would have run in February 2010. The complaint of this action was filed in November 2010, which was nine months beyond the limitations period. In support of his application, Michael C, states that the present action was commenced within one year and ninety days of his "notice and knowledge of the incident." However, there is no "delayed discovery" rule applicable in actions for personal injury based on sexual abuse. In the Matter of N.M. v. Westchester County Health Care Corp., 10 A.D.3d 421, 781 N.Y.S.2d 681. Accordingly, the statute of limitations began to run at the time of the commission of the alleged tortious act in November, 2008, and the derivative claim of Michael C, is time-barred and must be dismissed.

It is within the discretion of the court to deny an application for leave to file a late notice of claim. See, Shapey v. East Rockaway Union Free School District, 277 A.D.2d 441, 715 N.Y.S.2d 893; Koustantinides v. City of New York, 278 A.D.2d 235, 717 N.Y.S.2d 301; Ryder v. Garden City School District, 277 A.D.2d 388, 716 N.Y.S.2d 97. In deciding an application for leave to serve a late notice of claim, the court must consider a number of criteria, with the most important being the determination that the municipality "acquired actual knowledge of the essential facts constituting the claim" within ninety days or a reasonable time thereafter. Felice v. Eastport/South Manor CSD, 50 A.D.3d 138, 147. Consideration may also be given to whether the claimant has demonstrated a reasonable excuse for the delay, whether the claimant was an infant or physically or mentally incapacitated , and whether the municipal entity's opportunity to investigate and defend against the claim was substantially prejudiced by the delay. See, General Municipal Law §50-e(5); Doe v. Goshen CSD, 13 A.D.3d 526, 787 N.Y.S.2d 75 (The infant claimant alleged that he was sexually abused by a school employee. The Second Department affirmed the denial of claimant's late notice of claim application where there was no evidence that the defendant acquired actual knowledge of the claim within 90 days or shortly thereafer, where there was a ten month delay in notifying the District of the claim).

The plaintiffs allege that the failure to serve a timely Notice of Claim is related to the infancy of the plaintiff, and that the statute of limitations had been tolled during the thirteen month delay in serving Notice of Claim from the date of accrual. However, if infancy is asserted as the reason for the failure to serve the Notice of Claim, the movant must demonstrate a nexus between the delay of service and the infancy of the plaintiff. Brown v. County of Westchester, 293 A.D.2d 748, 741 N.Y.S.2d 281. The infancy of the plaintiff, standing alone, does not compel the granting of an application for leave to serve a late Notice of Claim. Matter of Knightner v. City of New York, 269 A.D.2d 397, 702 N.Y.S.2d 643; see also, Matter of Donald E. v. Gloversville Enlarged School District, 191 A.D.2d 749, 594 N.Y.S.2d 385; Matter of Bloom v. Herrick Union Free School Dist, I 74 A.D.2d 665,666, 571 N.Y.S.2d 527. The plaintiffs have not set forth evidence demonstrating a nexus between the infancy of Jennifer C, and the failure to file a timely Notice of Claim.

Late notice of claim applications have been denied even in cases where a municipal entity had general knowledge that a wrong had been committed, but had not received notice of the specific claim. See. Morrison v. New York City Health & Hosps. Corp., 244 A.D.2d 487, 664N.Y.S.2d 342. Even timely incident and accident reports do not necessarily provide the municipality with the requisite knowledge of the specific legal claim. See, Conroy v. Smithtown Cent. Sch. Dist., 3 A.D.3d 492, 770 N.Y.S.2d 428 (incident report prepared the day after the accident was insufficient to establish knowledge of the claim); Price v. Board of Educ. of Yonkers, 300 A.D.2d 310, 751 N.Y.S.2d 286 (accident report completed on the day of the accident did not apprise the school of the supervision claim); Ryder v. Garden City Sch. Dist., 277 A.D.2d 388, 716 N.Y.S.2d 97 (incident form filled out two days after an accident did not provide actual notice of a negligent supervision...