The petitioners move for leave to file a late notice of claim pursuant to GML §50-e(5). The petitioners describe the nature of the claim as:

"The claim is for the sexual harassment, personal injury, pain, suffering, emotional trauma and distress on behalf of the claimant Kelsea L. S. and the derivative action of her parent, Mitchell S. based upon the negligence of the Arlington School District, Arlington High School and employee/gent Christopher Perna."

The proposed notice of claim asserts that starting in November, 2008 and continuing until August 11, 2009, Kelsea L. S. was sexually harassed while a student at the Arlington High School by a teacher, Christopher Perna. The claim asserts that the Arlington School District knew or in the exercise of reasonable care should have known that its employee engaged in inappropriate sexual interactions and communications with a student, Kelsea L. S.. The petitioners also claim that the school district was negligent in the hiring, retention and supervision of Christopher Perna and was aware of his sexual conduct towards Kelsea L. S. and other students. At all relevant times, Kelsea L. S. was and remains a minor under the age of eighteen having been born on July 5, 1994.

General Municipal Law §50-e(1)(a) requires that a notice of claim shall be served within ninety days after the claim arises. Regardless of when this claim is deemed to have accrued, it is uncontroverted that the petitioners did not timely file the requisite notice of claim.

General Municipal Law §50-e(5) permits the court, in its discretion, to extend the time to serve a notice of claim. That section provides, inter alia:

"In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge [*2]of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits."

It has been held that the presence or absence of any one of the key factors which a court must consider on such a motion is not necessarily determinative. (Matter of Ambrico v. Lynbrook Union Free School District, 71 AD3d 762, 763 [2d Dept. 2010].)

On this application, the petitioners assert that at least five school officials, including the district superintendent, had actual knowledge of the essential facts pertaining to Mr. Perna's alleged misconduct. The respondents' attorney does not dispute this assertion and, in fact, avers that:

"Although the District may have acquired knowledge regarding the interactions between Mr. Perna and Kelsea, this is insufficient to establish actual knowledge of a potential claim on behalf of Kelsea and/or her parents."

The respondent does not submit the affidavit of any district official who denies that in April or May, 2009, Kelsea informed the band director of the Arlington High School about the details of Mr. Perna's sexual misconduct, including that he had sent e-mails of his exposed genitalia and had instructed Kelsea to engage in explicit sexual acts via cell phone. The respondents do not deny that assistant principal Hillary Roberto was informed of Perna's misconduct and questioned Kelsea specifically about it. The respondents do not dispute that during the same period, Kelsea revealed the details of Perna's misconduct to her guidance counselor, Amy Downes. The respondents do not deny that in mid-June, 2009, Frank Pepe, Superintendent of the Arlington School District, was advised of Perna's misconduct and that Pepe indicated that he would be contacting law enforcement. Superintendent Pepe had additional communication with the minor's parents in July, 2009. Nonetheless, Perna continued his sexual misconduct through the middle of August, 2009. It is uncontroverted that as a result of the petitioners' timely disclosures, the district did undertake an investigation within ninety days of accrual of the claim. There can be no question, and the court finds, that the respondents had actual knowledge of the essential facts which constitute the instant claim well within the relevant accrual period. This factor is generally accorded great weight in the court's overall determination. (Ambrico, supra at 763.)

It is uncontroverted that petitioner Kelsea S. was and is an infant having been born on July 5, 1994. While GML §50-e(5) requires the court to consider this fact in determining whether to grant leave to serve a late notice of claim, there appears to be little nexus between the petitioner's infancy and her failure to timely file a notice of claim. The court affords this factor little weight in its determination.

The petitioners assert that they reasonably believed that any criminal matter had to be [*3]concluded before any civil action could be commenced. Immediately following the accrual of the petitioners' claim, the petitioner and her parents were involved with the district attorney's office in the successful prosecution of Mr. Perna, who was arrested on August 18, 2009, within a week of his last sexual e-mails to the petitioner. It was not until the resolution of the criminal proceeding by Perna's guilty plea in April, 2010 ^[FN1] that the petitioners began to explore the possibility of a civil action. Under the circumstances of the stress of the ongoing criminal prosecution which was exacerbated by Kelsea's minority, the court finds that the petitioners had a reasonable excuse for the delay in serving the notice of claim.

Most significantly, the petitioners have established that the respondents would suffer no prejudice if the court were to permit the late filing. As previously noted, the respondents knew of all the essential facts underlying this claim well within the ninety day limitation period. In fact, the respondents instituted their own investigation within the limitations period. Counsel for the respondents suggests, in conclusory fashion, that the investigation launched by the school district was not concerned with its own liability. Counsel's unsupported assertion strains the bounds of credulity. There is no attempt to explain how the district could conduct a thorough investigation of alleged teacher misconduct with a student without, perforce, uncovering facts implicit to its own liability. It is significant that the respondents have elected not to include the affirmation of Frank Pepe, an experienced school superintendent, who could have described how narrowly he limited his investigation, if that was true. The uncontroverted fact presented to this court is that the superintendent, within the ninety day limitation period, undertook an investigation of allegations presented to him by his staff and the parents of one of his students relating to the sexual misconduct of one of his teachers. The court cannot conceive of a circumstance where the district can now claim to be prejudiced since they were fully aware of all of the essential facts set forth in the petitioners' claim well within the ninety day limitation period. During the period of their investigation and prior to his arrest, Mr. Perna was still an employee of the school district available for whatever inquiries the district deemed appropriate. The respondents have presented no evidence that their defense of the petitioners' claim is in any way prejudiced by the delay in filing the notice of claim by their inability to conduct interviews or to examine the petitioners. Therefore, based on of the circumstances presented, it is ordered that the petitioners' application for leave to file the late notice of claim which is included in her motion papers as exhibit "B" is granted. It is ordered that the petitioners shall serve the notice of claim on

or before July 30, 2010.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

June 23, 2010

ENTER

HON. JAMES D. PAGONES, A.J.S.C.

061610 decision & order