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K.A. (Anonymous) v. Wappingers Central School District

Supreme Court of New York, Second Department

June 14, 2017

K.A. (Anonymous), a minor, by her parents, D.A. and J.A., et al., appellants,
v.
Wappingers Central School District, respondent, et al., defendant. Index No. 1769/14

          Sussman and Watkins, Goshen, NY (Michael H. Sussman and Jonathan R. Goldman of counsel), for appellants.

          Catania, Mahon, Milligram & Rider, PLLC, Newburgh, NY (David A. Rosenberg of counsel), for respondent.

          MARK C. DILLON, J.P. SANDRA L. SGROI SYLVIA O. HINDS-RADIX JOSEPH J. MALTESE, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Rosa, J.), dated December 3, 2015, which denied their motion, inter alia, pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated October 29, 2014, granting the unopposed motion of the defendant Wappingers Central School District to dismiss the complaint insofar as asserted against it on the ground that the plaintiffs failed to serve a timely notice of claim.

         ORDERED that the order dated December 3, 2015, is reversed, on the law, on the facts, and in the exercise of discretion, with costs, and the plaintiffs' motion, inter alia, pursuant to CPLR 5015(a)(1) to vacate the order dated October 29, 2014, is granted.

         In November 2012, K.A., a mostly nonverbal 18-year-old with developmental disabilities, was sexually assaulted by the defendant Charles Kane, a bus attendant employed by the defendant Wappingers Central School District (hereinafter the School District), while K.A. was traveling between her parent's home and the residential facility where she lived. The bus attendant eventually pleaded guilty to criminal sexual act in the first degree and was sentenced to eight years in prison.

         On February 20, 2013, the plaintiffs, K.A., by her parents, and her parents on their own behalf, served the requisite notice of claim upon the School District. In the notice of claim, they stated that the last act of sexual abuse occurred on November 20, 2012, but they first learned of the abuse on November 26, 2012, after the School District reviewed surveillance video from the bus. The plaintiffs each appeared for a 50-h hearing and subsequently commenced this action to recover damages for personal injuries.

         The plaintiffs alleged in their complaint that they became concerned about the bus attendant's conduct on November 20, 2012, after speaking with the parent of another student who rode the bus, that the School District reviewed surveillance video from the bus, and that the video revealed that the bus attendant sexually assaulted K.A. The plaintiffs further alleged, among other things, that the School District failed to properly train and supervise its bus drivers and attendants and failed to provide K.A. with a safe environment during transport to and from school.

         The School District moved to dismiss the complaint insofar as asserted against it on the ground that the plaintiffs failed to serve a timely notice of claim as required by Education Law § 3813(2) and General Municipal Law § 50-i. The School District argued that the plaintiffs' claim accrued when the last act of abuse occurred on November 20, 2012, and therefore the notice of claim was untimely served. In support of its motion, the District submitted the complaint, the amended response to the bill of particulars, and the notice of claim. Due to illness, the plaintiffs' counsel did not timely submit opposition papers.

         By order dated October 29, 2014, the Supreme Court granted the School District's unopposed motion to dismiss the complaint insofar as asserted against it for failure to timely serve a notice of claim. Thereafter, the plaintiffs moved pursuant to CPLR 5015(a)(1) to vacate the order or, in the alternative, for leave to serve a late notice of claim. The court denied the motion, concluding that, although the plaintiffs "establish[ed] a reasonable excuse for the failure to oppose defendant's motion, " they failed to demonstrate a potentially meritorious opposition to the motion. As pertinent to this appeal, the court determined that, for purposes of the notice of claim, the plaintiffs' claim accrued at the latest on November 20, 2012, "the latest date that [the bus attendant] is alleged to have had sexual contact with K.A." The court went on to find that the 90-day period in which to file a notice of claim expired on February 18, 2013, and, thus, their notice of claim was served two days late. We reverse.

         A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; Matter of Gastaldi v Gastaldi, 125 A.D.3d 657, 658; Santos v Penske Truck Leasing Co., 105 A.D.3d 1029, 1029). "A motion to vacate a default is addressed to the sound discretion of the court" (Vujanic v Petrovic, 103 A.D.3d 791, 792; see Santos v Penske Truck Leasing Co., 105 A.D.3d at 1029).

         Here, the School District does not take issue with the Supreme Court's determination that the plaintiffs demonstrated a reasonable excuse for their default in opposing the motion. The School District simply argues that the plaintiffs failed to demonstrate a potentially meritorious opposition to the motion. We disagree. Assuming, without deciding, that the plaintiffs failed to timely serve a notice of claim, the plaintiffs nonetheless demonstrated a potentially meritorious opposition by demonstrating circumstances warranting the court's exercise of discretion to grant leave to serve a late notice of claim or have their notice of claim deemed timely served nunc pro tunc (see General Municipal Law § 50-e[5]).

         To maintain a tort action against a school district, a claimant must serve a notice of claim within 90 days after the claim accrues (see Education Law § 3813[2]; General Municipal Law § 50-i[1]; Mosheyev v NewYork City Dept. of Educ., 144 A.D.3d 645; Matter of Quinn v Wallkill Cent. Sch. Dist. Bd. of Educ., 131 A.D.3d 1063, 1063; Matter of Rodriguez v Woodhull Sch., 105 A.D.3d 1050, 1050). As a general matter, "[t]he purpose of the notice of claim requirement is to allow the municipality [or school district] to conduct an investigation of the circumstances surrounding the accident, and to assess the merits of the claim, while information is still readily available" (Matter of Wertenberger v Village of Briarcliff Manor, 175 A.D.2d 922, 923; see Matter of Board of Educ. of Enlarged Ogdensburg City School Dist. [Wager Constr. Corp.], 37 N.Y.2d 283, 289).

         However, as a matter of discretion, and upon consideration of all relevant facts and circumstances, courts may grant permission to claimants to serve late notices of claim. In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider all relevant circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits (see Education Law § 3813[2-a]; General Municipal Law § 50-e[5]; Matter of Grande v City of New York, 133 A.D.3d 752, 752-753; Claud v West Babylon Union Free Sch. Dist., 110 A.D.3d 663, 664; Matter of Valila v Town of Hempstead, 107 A.D.3d 813, 814; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 147), and "whether the claimant was an infant, or mentally or physically incapacitated" (Education Law § 3813[2-a]; General Municipal Law § 50-e[5]). "While the presence or the absence of any ...


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