Mindy O. v. Binghamton City Sch. Dist.

• Decision Date: 21 April 2011
• Citation: 921 N.Y.S.2d 696,266 Ed. Law Rep. 889,83 A.D.3d 1335,2011 N.Y. Slip Op. 03170
• Parties: MINDY O. et al., Individually and as Parents and Guardians of Casey O., an Infant, Respondents, v. BINGHAMTON CITY SCHOOL DISTRICT, Appellant.
• Court: New York Supreme Court

83 A.D.3d 1335

921 N.Y.S.2d 696

MINDY O. et al., Individually and as Parents and Guardians of Casey O., an Infant, Respondents,

v.BINGHAMTON CITY SCHOOL DISTRICT, Appellant.

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

April 21, 2011.

Coughlin & Gerhart, L.L.P., Binghamton (James P. O'Brien of counsel), for appellant.

Butler & Butler, Vestal (Matthew C. Butler of counsel), for respondents.

Before: SPAIN, J.P., LAHTINEN, GARRY and EGAN JR., JJ.

GARRY, J.

Appeal from that part of an order of the Supreme Court (Lebous, J.), entered September 8, 2010 in Broome County, which partially granted plaintiffs' cross motion for, among other things, leave to file a late notice of claim.

Plaintiffs allege that, as a result of defendant's negligent supervision, their child (born in 1997) was physically assaulted and forced or coerced into sexual activity by fellow students on school grounds on repeated occasions during the 2008–2009 school year, when the child was attending sixth grade in one of defendant's schools. In July 2009, plaintiffs served a notice of claim on defendant on their own behalf and that of the child. Defendant rejected the notice of claim for, among other things, being untimely. Later in July 2009, plaintiffs re-served the notice of claim, and defendant again rejected it. Plaintiffs commenced this action on November 2, 2009 by filing a summons and complaint, which was not served upon defendant until March 25, 2010 ( seeCPLR 306–b). Defendant moved to dismiss the complaint for, among other things, failure to comply with the notice of claim provisions of General Municipal Law §§ 50–e and 50–i. Plaintiffs cross-moved for relief including leave to file a late notice of claim and an order extending the time to serve the complaint. Supreme Court granted defendant's motion to dismiss, without prejudice, but also partially granted plaintiffs' cross motion by permitting them to serve a late notice of claim and thereafter file a new complaint asserting the claims advanced on behalf of the child, but not as to plaintiffs' claims on their own behalf. Defendant appeals.

Supreme Court is vested with broad discretion in determining whether to grant an application for leave to file a late notice of claim ( see Matter of Place v. Beekmantown Cent. School Dist., 69 A.D.3d 1035, 1035–1036, 892 N.Y.S.2d 638 [2010];Matter of Lanphere v. County of Washington, 301 A.D.2d 936, 937, 754 N.Y.S.2d 125 [2003] ). Such an application must be made before the expiration of the one year and 90–day limitations period ( seeGeneral Municipal Law §§ 50–e, 50–i[1][c] ), but the statute of limitations is tolled until the 18th birthday of an infant plaintiff ( see Matter of Place v. Beekmantown Cent. School Dist., 69 A.D.3d at 1036, 892 N.Y.S.2d 638;Matter of Hinton v. New Paltz Cent. School Dist., 50 A.D.3d 1414, 1415, 857 N.Y.S.2d 753 [2008] ). The court must make a discretionary determination based on statutory factors, including whether a reasonable excuse exists for the delay, whether the defendant had actual knowledge of the facts constituting the claim, and whether the delay caused substantial prejudice to the defendant ( see Matter of Apgar v. Waverly Cent. School Dist., 36 A.D.3d 1113, 1114, 828 N.Y.S.2d 652 [2007];Matter of Scuteri v. Watkins Glen Cent. School Dist., 261 A.D.2d 779, 779–780, 689 N.Y.S.2d 751 [1999] ).

As to whether a reasonable excuse existed, plaintiffs allege that they first learned that the child had been sexually assaulted in the summer of 2009, after asking her about certain drawings they found in her room. The notice of claim was filed shortly thereafter in July 2009. We have previously held that a reasonable excuse exists for delay in filing a notice of claim where the nature and extent of a child's injuries are not immediately apparent ( see Matter of Welch v. Board of Educ. of Saratoga Cent. School Dist., 287 A.D.2d 761, 763, 731 N.Y.S.2d 94 [2001] ). Here, plaintiffs' lack of awareness that the child had been injured at all is a reasonable excuse.

Notably, the record indicates that the notice of claim may not have been untimely as to all the events alleged therein. Plaintiffs' claims were not, as defendant suggests, confined to events that took place in September 2008. Instead, plaintiffs alleged that the first physical assault on the child took place in September 2008, that additional physical assaults occurred on unspecified dates thereafter, and that the child was also subjected to an “ongoing assault of sexual activity that [took] place over months and months during the [2008–2009] school year.” While the notice was undeniably vague as to the dates of these events, more specific information was furnished in short order by a police investigation initiated by plaintiffs and completed—and reported to school officials—in mid-August 2009. In the course of the investigation, police officers interviewed the child and several classmates who had allegedly engaged in sexual activity with her. The children gave detailed, consistent accounts of participating in sexual activity on school property on at least two occasions—the first in April or May 2009, and the second in June 2009, less than 90 days before the notice of claim was served on defendant. In addition to casting doubt on the lateness of the notice of claim, we find that the police report provided defendant with actual knowledge of at least some of the facts constituting the claim approximately two months after the most recent assault occurred and, thus, “within a reasonable time” after the claim arose ( Hinton v. New Paltz Cent. School Dist., 50 A.D.3d at 1416, 857 N.Y.S.2d 753;see Matter of Drozdzal v. Rensselaer City School Dist., 277 A.D.2d 645, 646, 716 N.Y.S.2d 435 [2000] ).

Turning to the issue of prejudice, defendant contends that the memories of the children involved in the incident are likely to have faded and that it has no documents or records related to the alleged incidents. However, this has not been established as defe...