Defendant.

The following papers numbered 1 to 8 read on this motion by the plaintiffs for an order finding that the infant plaintiff is not required to file a late notice of claim; cross-motion by the defendant to dismiss.

Notice of Motion - Affidavits - Exhibits - Service............1 - 4
Notice of Cross-Motion - Affidavits - Exhibits - Service..5 - 8

Upon the foregoing papers it is ORDERED that this motion and cross-motion are granted, only to the extent indicated, and are otherwise denied.

It is not disputed that the infant plaintiff was removed from the custody of the plaintiff mother and placed in the custody of the respondent's Administration for Children's Services. She was then placed in foster care. While in the foster home, and at the age of 12, she was allegedly raped and otherwise abused by an adult male residing in the home. A complaint was filed with the New York City Police Department on or about March 17, 1998. No notice of claim has been filed on behalf of either the infant or the adult plaintiff.

It is unclear from the papers before the court why the infant plaintiff was removed from her mother's custody or when, if ever, she was restored to her custody. Since the defendant does not raise the issue of legal capacity, the court will assume that the plaintiff mother does indeed have legal custody at this time.

The infant plaintiff was clearly a ward of the City at the time she was removed from her mother's custody and placed in foster care (Umlauf v County of Chautauqua, 132 AD2d 958, app. dismissed 70 NY2d 1002). Pursuant to General Municipal Law ' 50-e(8), she was not required to file a notice of claim at the time her claim accrued. Maurice W. v Onondaga County Dept. of Social Services, 186 AD2d 986, is not to the contrary, since it refers to the infant's status Aat the time of her placement in foster care,@ and not her status while in foster care. To the extent that the infant plaintiff herein has been returned to her mother's custody and is no longer a ward of the City, however, a notice of claim is required. Since the custodial agency had full knowledge of the facts, there is no prejudice from allowing the late filing of a late notice of claim on the infant plaintiff's behalf. Therefore, the motion is granted to the extent that a late notice of claim may be filed within sixty days of the service of this order with notice of entry.

As to the plaintiff mother's derivative claim, however, the defendant is entitled to a dismissal. The mother had knowledge of the claim as early as March of 1998, when she filed the complaint with the Police Department, and no excuse has been proffered for her failure to file a notice of claim on her own behalf.

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                             J.S.C.

Dated: January 11, 2000