N.N. v. N.Y.C. Dep't of Educ.
| Decision Date | 16 June 2016 |
| Docket Number | No. 513659/2015.,513659/2015. |
| Citation | 38 N.Y.S.3d 831 (Table) |
| Parties | In the Matter of the Application of N.N., Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant. |
| Court | New York Supreme Court |
Herman Law New York, by Jeffrey M. Herman, Esq., New York, Attorney for Plaintiff.
Zachary Carter, Esq. by Alison E. Estess, Esq., Corporation Counsel of the City of New York, New York, Attorneys for Defendants.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
| Papers | Numbered |
| Notice of Motion/Cross Motion and Affidavits (Affirmations) | Annexed 1 |
| Opposing Affidavits (Affirmations) | 2 |
| Reply Affidavits (Affirmations) | 3 |
Petitioner N.N. moves by notice of petition, sequence number one, pursuant to General Municipal Law section 50–e for leave to file a late notice of claim. Respondent, the New York City Department of Education, opposes this application.
Petitioner seeks leave to file a late notice of claim against the New York City Department of Education (the DOE) for their alleged negligence, and for violation of Title IX, Education Amendments of 1972—20 U.S.C. section 1681, based on the actions of a high school teacher, Sean Shaynak (Shaynak). Shaynak allegedly engaged in an inappropriate relationship with petitioner, a minor and a student at Brooklyn Technical High School (Brooklyn Tech.).1
).
Petitioner approximates that this relationship occurred between 2012 and 2014. Based on counsel's representation that plaintiff reached 18 years of age in September of 2015 (Notice of Petition at para. 13), this Court estimates that in school years 2012–2014, petitioner was between 14–17 years of age.2
The last communication that petitioner received from Shaynak occurred on August 26, 2014, the day Shaynak was arrested for allegedly sending an explicit photograph to another female student at Brooklyn Tech. known as T.T. through the social messaging service “Snapchat” (see Matter of T.T. v. New York City Department of Education, 48 Misc.3d 607, 7 N.Y.S.3d 876 [Sup Ct., 2015] ). Shaynak's arrest was highly publicized in the media.
(Notice of Petition, Exhibit C, District Attorney, Kings County, Press Release, September 30, 2014).
Based on the foregoing, the Special Commissioner of Investigation for the New York City School District (N.Y.C School District Investigator) began an investigation into the hiring of Shaynak on October 3, 2014. During the course of this investigation, the NYC School District Investigator met with various DOE employees, including the DOE's Director of Employee Relations. The investigation recovered a number of issues in Shaynak's employment history, including but not limited to: (1) an arrest following a physical altercation with a “young teen male” in 2005; (2) accusations that Shaynak verbally berated students, belittling them and subjecting them to ridicule in public; (3) personality conflicts between Shaynak and the Assistant Principal in his Teaching Fellows program; and (4) information from another teacher at Brooklyn Tech. who indicated that Shaynak had inappropriate interactions with students during school sponsored costume parties (see Notice of Petition, Exhibit D, City of New York, The Special Commissioner of Investigation For The New York City School District, November 20, 2014).3
In addition to N.N., the petitioner herein, and T.T., a third student known as J.J. commenced an action in 2015 seeking leave to file a late notice of claim against the DOE alleging that Shaynak had sexually harassed and assaulted her while she was a student at Brooklyn Tech. (see Matter of J.J. v. New York City Department of Education, Index Number 939/2015, Kings County Supreme Court, J. Vaughn).4
“In order to maintain a tort action against a school district, a claimant must serve a notice of claim within 90 days of the alleged injury” (Quinn v. Wallkill Cent. School Dist. Bd. of Educ., 131 AD3d 1063, 16 N.Y.S.3d 277 [2 Dept., 2015], citing Education Law § 3813[2] ; see also Fox v. New York City Dep't of Educ., 124 AD3d 887, 2 N.Y.S.3d 210 [2 Dept., 2015] ). “The determination to grant leave to serve a late notice of claim lies within the sound discretion of the Supreme Court” (Barrett v. Vill. Of Wappingers Falls, 130 AD3d 817, 12 N.Y.S.3d 577 [2 Dept., 2015] ; see Wooden v. City of New York, 136 AD3d 932, 25 N.Y.S.3d 333 [2 Dept., 2016] ; Nurena v. Westchester Cnty., 120 AD3d 781, 992 N.Y.S.2d 86 [2 Dept., 2014] ). However, a claimant must petition for leave to serve a late notice of claim, or to deem a notice of claim timely served nunc pro tunc, within one (1) year and 90 days from the date which the claim accrues. Otherwise the claim is barred by the statute of limitations (see GML § 50–e [5 ]; Laroc v. City of New York, 46 AD3d 760, 847 N.Y.S.2d 677 [2 Dept., 2007] ).
In the instant case, the accrual dates of petitioner's claims are unclear. In her proposed notice of claim petitioner details an ongoing “sexually inappropriate and manipulative” relationship which ranged from 2012–2014. Petitioner describes sexual assault which occurred between September and December of 2013. She describes ongoing sexual harassment by Shaynak, but provides no dates that this alleged harassment occurred. Although this was not included in her proposed notice of claim, petitioner argues that her last communication with Shaynak, occurred on August 27, 2014. Even assuming, arguendo, that August 27, 2014, the most recent date, is the appropriate accrual date for all listed causes of action, petitioner's statutory 90–day period would have expired on November 25, 2014. Petitioner made the instant application for leave to file a late notice of claim on November 9, 2015, nearly one year after expiration of her statutory 90–day period.5
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