Doe v. North Tonawanda Central School District

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

. All concur except Centra, J.E, who dissents and votes to reverse in accordance with the following memorandum.

I respectfully dissent and would reverse the order granting the application to serve a late notice of claim. In deciding an application for leave to serve a late notice of claim, Supreme Court is to consider the factors set forth in General Municipal Law § 50-e (5), but those factors are “nonexhaustive” and the decision whether to grant the application “compels consideration of all relevant facts and circumstances” (Wil liams v Nassau County Med. Ctr., 6 NY3d 531 , 539 [2006]). The “key factors for the court to consider . . . are whether the claimant has demonstrated a reasonable excuse for the delay, whether [respondent] acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would substantially prejudice [respondent] in maintaining a defense on the merits” (Le Mieux v Alden High School, 1 AD3d 995 , 996 [2003]).

Here, the only factor weighing in favor of granting the application is that claimant demonstrated a reasonable excuse for her delay in serving a notice of claim. Although claimant reported the abuse to her parents and the police, her parents decided not to commence a civil action on her behalf. On her 18th birthday, claimant retained the attorney who brought this application. While the delay of service was not solely caused by the infancy “since there was no indication that [claimant] lacked the capacity to complain and make the abuse known” (Matter of Doe v Goshen Cent. School Dist., 13 AD3d 526 , 526-527 [2004]), I agree with the majority that her excuse for the delay is reasonable (see generally Williams, 6 NY3d at 538 ). In my view,