Mindy O. v. Binghamton City School DistrictMindy O. v. Binghamton City School District
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 (see
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 AD3d 1035, 1035-1036 [2010]; Matter of Lanphere v County of Washington, 301 AD2d 936, 937 [2003]). Such an application must be made before the expiration of the one year and 90-day limitations period (see
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 AD2d 761, 763 [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 (Matter of Hinton v New Paltz Cent. School Dist., 50 AD3d at 1416; see Matter of Drozdzal v Rensselaer City School Dist., 277 AD2d 645, 646 [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
As to defendant‘s contention that no nexus was established between the delay in filing the notice of claim and the child‘s infancy, we are unpersuaded that the child‘s initial reluctance to report or admit the alleged assaults was unrelated to her infancy. In any event, the absence of such a nexus is not fatal where, as here, defendant had actual notice of at least some of the pertinent facts and has not shown prejudice (see Matter of Hinton v New Paltz Cent. School Dist., 50 AD3d at 1416). Finally, upon review of the record, we do not find the claim of negligent supervision “patently meritless” (Matter of Place v Beekmantown Cent. School Dist., 69 AD3d at 1037). Accordingly, we find no abuse of discretion in allowing plaintiffs to file a late notice of claim.
Defendant also contends that Supreme Court erred by granting plaintiffs an extension of time to serve the complaint. This argument misconstrues the court‘s decision and order; in accord with
Spain, J.P., Lahtinen and Egan Jr., JJ., concur. Ordered that the order is affirmed, without costs.