Doe v. North Tonawanda Central School District

Memorandum: Supreme Court did not abuse its discretion in granting claimant’s application for leave to serve a late notice of claim upon respondent (see Education Law § 3813 [2-a]; General Municipal Law § 50-e [5]; Matter of Melissa G. v North Babylon Union Free School Dist., 50 AD3d 901, 902 [2008]). The claim seeks damages from respondent for injuries allegedly sustained by claimant as the result of alleged sexual abuse by a male teacher employed by respondent. At the time of the alleged sexual abuse, claimant was seven or eight years old. Claimant alleges, inter alia, that respondent was negligent in supervising that teacher and in failing to create and implement policies to prevent and address such abuse. The record establishes that claimant had a reasonable excuse for her delay in serving the notice of claim based upon her infancy at the time the notice of claim should have been served (see Matter of Trusso v Board of Educ. of Jamestown City School Dist., 24 AD3d 1302 [2005]), along with the refusal of her legal guardians to initiate a claim on her behalf at that time. Claimant, moreover, filed the instant application the very day after her 18th birthday (see Matter of Meredithe C. v Carmel Cent. School Dist., 192 AD2d 952, 953 [1993]). The record further establishes that, during the time period in which the alleged sexual abuse occurred with respect to claimant, respondent conducted an investigation of the teacher’s conduct based upon accusations of sexual abuse made by other students. That 1290 conduct by the teacher resulted in his arrest, prosecution and conviction, and was the basis for civil actions initiated against respondent on behalf of those students. We conclude, therefore, that respondent had actual notice of the essential facts underlying the instant claim within a reasonable time (see Matter of Drozdzal v Rensselaer City School Dist., 277 AD2d 645, 646 [2000]; Matter of Kelli A. v Galway Cent. School Dist., 241 AD2d 883, 884-885 [1997]; Meredithe C., 192 AD2d at 953). Finally, we conclude that there has been no substantial prejudice to respondent based on the delay and that, indeed, the evidence submitted by respondent fails to demonstrate that its ability to defend itself against the claim has been impaired (see Mindy O. v Binghamton City School Dist., 83 AD3d 1335, 1337-1338 [2011]; Matter of Andrew T.B. v Brewster Cent. School Dist., 18 AD3d 745, 748 [2005]). . All concur except Centra, J.E, who dissents and votes to reverse in accordance with the following memorandum.