Opinion
110870/05.
Decided January 17, 2006.
Upon the foregoing papers, it is ordered that this motion is granted, for the reasons set forth below.
Background
Petitioner-father brings the instant application to serve a late notice of claim on behalf of himself and his infant son (infant-petitioner) in order to assert claims for damages against respondents the New York City Board of Education (Board of Education) and the City of New York (City), based upon an alleged sexual assault of the infant by a fellow student in the bathroom of a Junior High School located in New York, New York on or about February 14, 2005. The infant-petitioner is mentally retarded and also suffers from cerebral palsy. The father retained counsel on or about June 15, 2005. Petitioners' attorney attempted to serve a notice of claim on respondent City on or about June 17, 2005 and on respondent Board of Education on or about June 20, 2005, which was approximately one month after the expiration of the 90 day period. By letter dated July 14, 2005, the Office of the City Comptroller disallowed petitioners' notice of claim, as it was not served within 90 days of the alleged occurrence, as required by General Municipal Law (GML) § 50-e (1) (a). Petitioners brought the instant application to serve a late notice of claim by order to show cause signed by this Court on August 4, 2005 Discussion 1. The City's Assertion that the Claim is "Patently Meritless" as the Board of Education is the only Proper Party
Petitioners have also prepared a summons and verified complaint, which they assert was filed with the New York County Clerk and served on the City (Affirmation of Mark L. Lubelsky, Esq. in Support of Application, Ex. C).
The City asserts that it is not a proper party to this matter and that the application to file the late notice of claim should be denied because the claim is "patently meritless". The City maintains that the only proper party in this case is the Board of Education.
As stated by the Appellate Division, First Department: "Ordinarily, courts should not delve into the merits of an action in determining an application to file a late notice except in the rare case when the claim is "patently meritless" ( Katz v. Town of Bedford, 192 AD2d 707, 708, 597 N.Y.S.2d 140).". Weiss v. The City of New York, 237 AD2d 212 (1st Dept 1997). In view of the ambiguity engendered by the recent amendments to the Education Law transferring control over the City public schools to the Chancellor controlled by the Mayor, in the context of the other provisions of the Education Law, which left in place certain provisions as to the Board of Education, it cannot be said that the claim against the City is "patently meritless" at this preliminary stage of the litigation ( see Matter of Catherine G v. County of Essex, 3 NY3d 175, 178).
In support of its argument, the City cites statutes and case law predating the amendments. For example, the City relies upon the pre-amendment version of Education Law § 2554 (4), which provides, in pertinent part:
". . . [t]he board of education in a city shall have the power and it shall be its duty:
4. To have the care, custody, control and safekeeping of all school property or other property of the city used for educational, social or recreational work and not specifically placed by law under the control of some other body or officer, and to prescribe the rules and regulations for the preservation of such property."
However, the post-amendment version indicates that this cited provision only applies to cities "except the city board of the city of New York". Education Law § 2554. The City also refers to provisions of Chapter 20, § 521 (a) and (b) of the New York City Charter, which reflect the provisions of pre-amendment Education Law § 3554 (4).
Significantly, at least one recent lower court decision, Perez v. Torres ( 9 Misc 3d 934 [Sup Ct, Bronx County 2005] [Walker, J.]), has denied a motion by the City to dismiss an action brought on behalf of a student seeking damages due to injuries caused by a slashing by two fellow students, on the grounds that the Board of Education is the proper party. The Court emphasized the fact that the amendments to the Education Law enacted in 2002 transferred the power to control and operate the New York City public schools from the Board of Education to the Chancellor controlled by the City's Mayor ( see L. 2002, c. 91; see also Perez v. Torres, 9 Misc 3d at 935).
Prior to the amendments, Education Law § 2554 prescribed the powers and duties of all city school boards, including the New York City Board of Education, to control and operate the schools. In 2002, Education Law § 2554 was amended, stripping from the New York City Board of Education the powers granted to other city school boards (L. 2002, c. 91, §§ 2-4; see also Perez v. Torres, 9 Misc 3d at 935). Instead, the amended provision of Education Law § 2590-h (17) transfers the powers previously exercised by the Board of Education to the Chancellor (the exercise of which shall be in a manner not inconsistent with the provisions of this article and the city-wide educational policies of the city board") (L. 2002, c. 91, § 12; see also Perez v. Torres, 9 Misc 3d at 935). The amendments to Education Law § 2590-h further provide that the ". . . chancellor shall serve at the pleasure of and be employed by the mayor of the city of New York by contract" (L. 2002, c. 91, § 12).
In addition, the amendments limit the powers of the Board of Education, now denominated as the Panel for Educational Policy, to city-wide educational policy issues ( see Perez v. Torres, 9 Misc 3d at 936). For example, the amended Education Law § 2590-g provides, in pertinent part:
"The city board shall advise the chancellor on matters of policy affecting the welfare of the city school district and its pupils. The board shall exercise no executive power and perform no executive or administrative functions. Nothing herein contained shall be construed to require or authorize day-to-day supervision or the administration of the operations of any school within the city school district of the city of New York. . . ."
Further, the members of the Board of Education ". . . shall not have staff, offices, or vehicles assigned to them or receive any compensation for their services, but shall be reimbursed for the actual and necessary expenses incurred by them in the performance of their duties" (Education Law § 2590-h [a]).
In Perez v. Torres, supra, the Court concluded that, in view of the fact that, pursuant to the 2002 amendments, the Board of Education/Panel for Education Policy performs no administrative functions and is not authorized to supervise any school within the New York City school district, it could not be held liable for failing to prevent a student's injuries ( 9 Misc 3d at 936). There are, however, cases from the federal courts which have concluded that, despite the 2002 amendments to the Education Law, the Board of Education, not the City, is the proper entity to be held liable for tort claims. For example, in Gonzalez v. Esparza ( 2003 WL 21834970 [SD NY Aug. 6, 2003] [Kram, J.]), the District Court dismissed claims against the City arising out of a teacher's sexual relationship with a student, while allowing claims against the Board of Education to proceed. The Gonzalez court characterized the changes in the statutory scheme regarding the powers of the City and the Board of Education as "political".
Despite the recent amendments, the Board of Education continues to exist as a separate entity and continues to "for all purposes be the government or public employer of all persons appointed or assigned by the city board or the community school districts . . ." (Education Law § 2590-g; Gonzalez v. Esparza, 2003 WL 21834970*2; see also Marrero v. City of New York, 2004 wl 444548*2 [SDNY Mar. 10, 2004] [Cote, J] [dismissing discrimination claims by terminated school custodian against the City, as it is not liable for the torts of the Board of Education, which remains a separate and distinct entity and the "government and public employer of all persons appointed or assigned by the city board or the community school districts'" [Educ. Law § 2590-g; see also Gonzalez v. Esparza, supra).
In view of the developing state of the law on the powers of the City's Chancellor and the Board of Education, it cannot be said that petitioners' claims against the City are patently meritless at this preliminary stage of the litigation. Given the state of the law, and the attendant confusion surrounding the provisions of the Education Law as applied to the City and the Board of Education, the appellate courts may have an opportunity to construe the amended statutory provisions, and the Legislature may continue to clarify the respective roles of the chancellor and the Board of Education in the operation and control of the schools. Moreover, this matter does not involve the custody and control of school property, within the meaning of Education Law § 3554 (4). Instead, it concerns the alleged sexual abuse of a minor, who is mentally retarded and suffers from cerebral palsy. In addition, since the discovery process has not yet commenced, it is not possible to eliminate all liability by the City. Indeed, at this juncture, it is not appropriate to "delve into the merits" of this action, as the City has failed to establish that petitioners' claims are "patently meritless" as a matter of law ( see Weiss v. City of New York, 237 AD2d at 212).
2. Factors for Granting Application to Serve Late Notice of Claim
When deciding whether to grant an application for leave to file a late notice of claim, courts consider various factors, including the following: (1) whether the petitioner has demonstrated a reasonable excuse for the failure to timely serve a notice of claim; (2) whether the public corporation acquired actual knowledge of the essential facts constituting the claim within ninety days after the claim arose or shortly thereafter a factor that should be accorded great weight ( see Justiniano v. New York City Hous. Auth. Police, 191 AD2d 252 [1st Dept 1993]); and (3) whether the delay substantially prejudiced the municipality's ability to defend its case on the merits ( see General Municipal Law § 50-e; Diallo v. City of New York, 224 AD2d 339 [1st Dept 1996]; Strauss v. New York City Tr. Auth., 195 AD2d 322 [1st Dept 1993]; Gelles v. New York City Hous. Auth., 87 AD2d 757 [1st Dept 1982]). No one single factor is determinative ( see Matter of Gerzel v. City of New York, 117 AD2d 549, 551 [1st Dept 1986]; Rechenberger v. Nassau County Med. Ctr., 112 AD2d 150, 152 [2nd Dept 1985]; Matter of Morris v. County of Suffolk, 88 AD2d 956, 957 [2nd Dept 1982], affd 58 NY2d 767).
It has been observed that the 1976 amendments to General Municipal Law 50-e(5), gave "courts greater flexibility in exercising discretion" in granting leave to file a late notice of claim. Heiman v. City of New York, 85 AD2d 25, 28 (1st Dept 1982); see also Barnes v. County of Onondaga, 103 AD2d 624, 627, affirmed 65 NY2d 664 (1984). As indicated by the Committee to Advise and Consult with the Judicial Conference on the Civil Practice Law Rules, which drafted the amendments: "It is intended that older judicial decisions construing the provisions of section 50-e rigidly and narrowly will be inapplicable as a result of these remedial amendments which will enable the courts to apply these provisions in a more flexible manner to do substantial justice". Twenty-first Ann Report of NY Judicial Conference, 1976, at 288; See Heiman, 85 AD2d at 27.
Petitioners have provided several excuses for their failure to file a timely notice of claim. Significantly, GML § 50-e (5) provides that a court may consider the petitioner-child's infancy and mental and physical incapacity in determining whether to grant an application to serve a late notice of claim. The father has provided additional excuses for his delay in retaining counsel and serving a notice of claim including his responsibility for caring for his physically incapacitated wife, the infant-petitioner (who is mentally retarded and has physical disabilities that were allegedly exacerbated by the sexual assault) and for his two grandchildren, and his lack of knowledge of the statutory time limits for serving a notice of claim.
While it is acknowledged that ignorance of the law, and of the statutory notice of claim requirement pursuant to GML § 50-e, does not excuse the failure to file a timely notice of claim ( see Ocasio v. New York City Health and Hosps. Corp., 14 AD3d 361 [1st Dept 2005]; Harris v. City of New York, 297 AD2d 473 [1st Dept 2002], lv denied 99 NY2d 503; Matter of Embery v. City of New York, 250 AD2d 611 [1st Dept 1998]; Gaudio v. City of New York, 235 AD2d 228 [1st Dept 1997]), nevertheless, there are several factors which favor petitioners' application, including the petitioner-child's condition, his infancy, and the relatively short delay, after the expiration of the 90-day limit, of only approximately one month in serving the notices of claim on respondents and the slight delay of approximately two and one half months in making the instant application ( see Ahferom v. Dormitory Auth. of State of New York, 282 AD2d 343 [1st Dept 2001]; Matter of Thornhill v. New York City Hous. Auth., 232 AD2d 317 [1st Dept 1996]; Matter of Rivas v. New York City Hous. Auth., 188 AD2d 390 [1st Dept 1992]).
Even assuming, for the sake of argument, that petitioners lack an acceptable excuse for their delay, however, this is not fatal to an application to serve a late notice of claim ( see Harris v. City of New York, 297 AD2d at 473; Diallo v. City of New York, 224 AD2d at 340; Justiniano v. New York City Hous. Auth. Police, 191 AD2d at 252; Matter of Russell v. City of New York, 2003 NY Slip Op. 50872, 2003 WL 21146884 *2 [Sup Ct, NY County March 31, 2003, Ling-Cohan, J.]).
The purpose of the notice of claim provision in GML § 50-e "is to protect the municipality against unfounded claims and to assure it an adequate opportunity . . . to explore the merits of the claim while information is still readily available.'" ( see Camacho v. City of New York, 187 AD2d 262, 263 [1st Dept 1992] [citing Teresta v. City of New York, 304 NY 440, 443). "However, it should not operate as a device to defeat the rights of persons with legitimate claims. . . . Indeed, [GML § 50-e] . . . is remedial in nature and so should be liberally construed.'" ( Camacho, 187 AD2d at 263, citing Matter of Santana v. City of New York, 183 AD2d 665 [1st Dept 1992] [parenthetical supplied]). Accordingly, courts will consider all factors listed in GML § 50-e (5), when determining whether to grant an application to serve a late notice of claim ( see Diallo v. City of New York, 224 AD2d at 340; Justiniano v. New York City Hous. Auth. Police, 191 AD2d at 252; Matter of Russell v. City of New York, 2003 NY Slip Op. 50872, 2003 WL 21146884 * 2 [Sup Ct, NY County March 31, 2003, Ling-Cohan, J.]). Upon considering all of the relevant factors, the Court grants petitioners' application to serve a late notice of claim.
Respondents contend that petitioners have provided no documents informing them of the essential facts constituting their claim, based upon the alleged sexual assault of the petitioner-child, within the 90-day period for filing a notice of claim or a reasonable time thereafter, as provided by GML § 50-e(5).
Significantly, however, petitioners' service of a notice of claim on respondents, in June 2005, only approximately one month after the expiration of the statutory 90-day period, provided them with actual knowledge of the facts constituting the claim within a reasonable time after the expiration of that period ( see Barnes v. New York City Hous. Auth., 262 AD2d 46 [1st Dept 1999], lv denied 95 NY2d 757 [Housing Authority had actual notice of facts constituting injured infant's claim, where notice of claim was served 56 days after expiration of statutory period]).
Furthermore, petitioners have provided sufficient evidence from which one can infer that respondents had actual knowledge of the facts constituting the claim at the time of the alleged occurrence. Petitioners claim that the infant-petitioner screamed during the assault in the bathroom on the premises of the school and that a school security guard heard his screams and attempted to enter the bathroom; upon entry, the guard observed the child in a state of distress and holding up his pants. To further substantiate this, clinic notes have been attached as Exhibit F. The father states that he found the business card of a school guidance counselor in the infant-petitioner's clothes on the day of the incident. In addition, the father attempted to contact the principal of the school during a period of approximately ten days following the incident and the principal was always "unavailable". Also, the infant-petitioner's Young Adult Institute case manager also attempted to contact the school to ascertain what happened, and was told by the principal and vice principal that representatives of the school would discuss the incident only with the father, if he would meet with them without an attorney or a case manager, which he declined to do; the placement of these unusual conditions leads to the inference that the school officials had knowledge of the subject incident well within the 90 day statutory period. The above detailed facts, which are unrefuted, demonstrate that respondents had knowledge of the alleged sexual assault incident either at the time of the occurrence or "shortly thereafter", as required by Justiniano v. New York City Hous. Auth. Police, 191 AD2d at 252 ( cf. Young v. Board of Educ. of the City of New York, 1 AD3d 194 [1st Dept 2003] [reversing order denying application to serve a late notice of claim, made on behalf of infant alleging sexual abuse by a teacher approximately three years before, despite the fact that the school principal could not locate any records of the incident from the school or the Board of Education, where petitioner's mother submitted an affidavit stating that the school's former principal was made aware of the alleged incident several days after it occurred and he interviewed the child shortly thereafter]).
Moreover, respondents cannot assert that they were prejudiced in investigating the claim, as petitioners served a notice of claim only approximately one month late, and made this application to serve a late notice of claim within a relatively short time, approximately one month after the expiration of the statutory period ( see Ahferom v. Dormitory Auth. of State of New York, 282 AD2d 343, supra; Matter of Thornhill v. New York City Hous. Auth., 232 AD2d 317, supra; Matter of Rivas v. New York City Hous. Auth., 188 AD2d 390, supra). Further, to the extent that respondents oppose, speculatively claiming that respondents are "prejudiced", solely based on an attorney's affirmation lacking in personal knowledge, noticably absent is an affidavit from an investigator who allegedly attempted to investigate the incident, but was barred because of a claimed lack of timeliness.
Accordingly, it is
ORDERED AND ADJUDGED that petitioners' application to serve a late notice of claim is granted; and it is further
ORDERED AND ADJUDGED that the proposed notice of claim annexed as Exhibit "D" to petitioners' application is deemed timely served, nunc pro tunc, upon petitioners' service of a copy of this decision, order and judgment, with notice of entry upon respondents, within 30 days of the date of entry; and it is further
ORDERED AND ADJUDGED that petitioners shall submit to a 50-h hearing, should respondents so advise within 30 days of service of this order.
This constitutes the Decision, Order and Judgment of the Court.