Matter of N.N. v New York City Dept. of Educ.

[*1] Matter of N.N. v New York City Dept. of Educ. 2016 NY Slip Op 50983(U) Decided on June 16, 2016 Supreme Court, Kings County Genovesi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 16, 2016
Supreme Court, Kings County

In the Matter of the Application of N.N., Plaintiff,

against

New York City Department of Education, Defendant.



513659/2015



Herman Law New York

By: Jeffrey M. Herman, Esq.

Attorney for Plaintiff

41 Madison Avenue

25th Floor, Suite 2532

New York, NY 10010

Zachary Carter, Esq.

By: Alison E. Estess, Esq. Corporation Counsel of the City of New York

Attorneys for Defendants

100 Church Street, 4th Floor

New York, New York 10007
Lara J. Genovesi, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:

Papers Numbered

Notice of Motion/Cross Motion and

Affidavits (Affirmations) Annexed 1

Opposing Affidavits (Affirmations) 2

Reply Affidavits (Affirmations) 3

Introduction

Petitioner N.N. moves by notice of petition, sequence number one, pursuant to General Municipal Law section 50-e for leave to file a late notice of claim. Respondent, the New York [*2]City Department of Education, opposes this application.

Background and Procedural History

Petitioner seeks leave to file a late notice of claim against the New York City Department of Education (the DOE) for their alleged negligence, and for violation of Title IX, Education Amendments of 1972 — 20 U.S.C. section 1681, based on the actions of a high school teacher, Sean Shaynak (Shaynak). Shaynak allegedly engaged in an inappropriate relationship with petitioner, a minor and a student at Brooklyn Technical High School (Brooklyn Tech.).[FN1]

According to the proposed notice of claim, Shaynak "engaged in an inappropriate, harassing, and mentally damaging relationship with the claimant" (Notice of Petition, Exhibit "A", Notice of Claim, at para 2). The proposed notice of claim further provides that,

[t]his inappropriate relationship included, but was not limited to constant sexualized hugs, squeezing, and inappropriate touching, inappropriate text messages and communications sent by Shaynak that included Sean Shaynak nude in sexually suggestive poses, manipulating N.N. to send sexually inappropriate pictures back to Sean Shaynak, encouraging delinquency, sexual harassment, an episode of kidnapping, forced alcohol consumption, and sexual assault. The sexual assault included Shaynak grabbing and squeezing N.N.'s buttocks in a sexually aggressive manner. The inappropriate relationship began when N.N. was approximately 13 years old. The Sexual assault occurred while N.N. was approximately 14/15 years old.. . .3. The time when, the place where and the manner in which the claim arose: The exploitive, sexually inappropriate, and manipulative relationship between Sean Shaynak and N.N. occurred between 2012-2014. The incident of kidnaping occurred on or about September 13, 2013. The incident of forced alcohol consumption occurred on or about January, 2014. The sexual assault occurred somewhere between September-December, 2013.The sexual harassment and sexual assault occurred in Brooklyn Technical High School, 29 Fort Greene Place, Brooklyn NY 11217. Most of the sexual harassment occurred in Sean Shaynak's classroom and in the hallways. The sexual assault occurred in Sean Shaynak's classroom. The kidnapping incident occurred at Gunnison Beach, NJ. The forced alcohol consumption occurred at Sean Shaynak's home.

(Notice of Petition, Exhibit "A", Notice of Claim, at paras. 2-3).

Petitioner approximates that this relationship occurred between 2012 and 2014. Based on counsel's representation that plaintiff reached 18 years of age in September of 2015 (Notice of Petition at para. 13), this Court estimates that in school years 2012-2014, petitioner was between [*3]14-17 years of age.[FN2] The last communication that petitioner received from Shaynak occurred on August 26, 2014, the day Shaynak was arrested for allegedly sending an explicit photograph to another female student at Brooklyn Tech. known as T.T. through the social messaging service "Snapchat" (see Matter of T.T. v. New York City Department of Education, 48 Misc 3d 607, 7 N.Y.S.3d 876 [Sup Ct., 2015]). Shaynak's arrest was highly publicized in the media.

On September 30, 2014, the Kings County District Attorney's office issued a press release regarding Shaynak's arrest, which referenced evidence that Shaynak engaged in at least six inappropriate relationships with students while he was employed by Brooklyn Tech. The press release provided, in relevant part that,

a Brooklyn Technical High School math and science teacher who was indicted last month for allegedly sending an explicit photograph to a 16-year-old student has been charged in a new 36-count indictment with crimes including kidnapping and criminal sexual act [sic] after investigators found evidence on his computer that he allegedly victimized six other teenage girls.. . . .The District Attorney said that, according to the investigation, three computers and two phones were seized from the defendant following his August 26, 2014, arrest. A search warrant was executed and thousands of text messages, as well as hundreds of photographs and videos, were recovered. The investigation revealed that the defendant had allegedly victimized six teenage girls, ranging in age from 13-19, between 2011 and 2014.The District Attorney said that, according to the investigation, the defendant took a 15-year-old student to a nude beach in New Jersey without her parents' consent; he performed a sex act on an 18-year-old student without her consent; he sent photos of his genitalia to four students, including two minors; he engaged in consensual sex acts with two students (ages 18 and 19); he inappropriately touched and kissed students and grabbed the buttocks of a minor; he gave alcohol and cigarettes to minors; he requested two minor girls engage in sex with each other.

(Notice of Petition, Exhibit C, District Attorney, Kings County, Press Release, September 30, 2014).

Based on the foregoing, the Special Commissioner of Investigation for the New York City School District (NYC School District Investigator) began an investigation into the hiring of Shaynak on October 3, 2014. During the course of this investigation, the NYC School District Investigator met with various DOE employees, including the DOE's Director of Employee Relations. The investigation recovered a number of issues in Shaynak's employment history, including but not limited to: (1) an arrest following a physical altercation with a "young teen male" in 2005; (2) accusations that Shaynak verbally berated students, belittling them and subjecting them to ridicule in public; (3) personality conflicts between Shaynak and the Assistant Principal in his Teaching Fellows program; and (4) information from another teacher at Brooklyn Tech. who indicated that Shaynak had inappropriate interactions with students during [*4]school sponsored costume parties (see Notice of Petition, Exhibit D, City of New York, The Special Commissioner of Investigation For The New York City School District, November 20, 2014).[FN3]

In addition to N.N., the petitioner herein, and T.T., a third student known as J.J. commenced an action in 2015 seeking leave to file a late notice of claim against the DOE alleging that Shaynak had sexually harassed and assaulted her while she was a student at Brooklyn Tech. (see Matter of J.J. v. New York City Department of Education, Index Number 939/2015, Kings County Supreme Court, J. Vaughn).[FN4]

Discussion

"In order to maintain a tort action against a school district, a claimant must serve a notice of claim within 90 days of the alleged injury" (Quinn v. Wallkill Cent. School Dist. Bd. of Educ., 131 AD3d 1063, 16 N.Y.S.3d 277 [2 Dept., 2015], citing Education Law § 3813[2]; see also Fox v. New York City Dep't of Educ., 124 AD3d 887, 2 N.Y.S.3d 210 [2 Dept., 2015]). "The determination to grant leave to serve a late notice of claim lies within the sound discretion of the Supreme Court" (Barrett v. Vill. Of Wappingers Falls, 130 AD3d 817, 12 N.Y.S.3d 577 [2 Dept., 2015]; see Wooden v. City of New York, 136 AD3d 932, 25 N.Y.S.3d 333 [2 Dept., 2016]; Nurena v. Westchester Cnty., 120 AD3d 781, 992 N.Y.S.2d 86 [2 Dept., 2014]). However, a claimant must petition for leave to serve a late notice of claim, or to deem a notice of claim timely served nunc pro tunc, within one (1) year and 90 days from the date which the claim accrues. Otherwise the claim is barred by the statute of limitations (see GML § 50-e [5]; Laroc v. City of New York, 46 AD3d 760, 847 N.Y.S.2d 677 [2 Dept., 2007]).

In the instant case, the accrual dates of petitioner's claims are unclear. In her proposed notice of claim petitioner details an ongoing "sexually inappropriate and manipulative" relationship which ranged from 2012-2014. Petitioner describes sexual assault which occurred between September and December of 2013. She describes ongoing sexual harassment by Shaynak, but provides no dates that this alleged harassment occurred. Although this was not included in her proposed notice of claim, petitioner argues that her last communication with Shaynak, occurred on August 27, 2014. Even assuming, arguendo, that August 27, 2014, the most recent date, is the appropriate accrual date for all listed causes of action, petitioner's statutory 90-day period would have expired on November 25, 2014. Petitioner made the instant application for leave to file a late notice of claim on November 9, 2015, nearly one year after [*5]expiration of her statutory 90-day period.[FN5]

Leave to File the Late Notice of Claim

In determining whether to grant leave to serve a late notice of claim on a school district, the court must consider whether

(1) the school district or its attorney or insurance carrier acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the injured student was an infant at the time the claim arose and, if so, whether there was a nexus between the infancy and the failure to serve a timely notice of claim, (3) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (4) the school district was substantially prejudiced by the delay in its ability to maintain its defense on the merits

(Horn v. Bellmore Union Free Sch. Dist., 139 AD3d 1006, —N.Y.S.3d — [2 Dept., 2016], citing Education Law § 3813[2-a]; see Saponara v. Lakeland Cent. Sch. Dist., 138 AD3d 870, 29 N.Y.S.3d 491 [2 Dept., 2016]).

"While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance" (Mohamed v. New York City, — AD3d. —, 2016 NY Slip Op. 03743 [2 Dept., 2016], citing Matter of Placido v. County of Orange, 112 AD3d 722, supra; see Mitchell v. City of New York, 134 AD3d 94, 122 N.Y.S.3d 130 [2 Dept., 2015]; GML § 50-e).

Infancy/ Reasonable Excuse

"A claimant's infancy will automatically toll the applicable one—year—and—90—day statute of limitations for commencing an action against a school district (see CPLR 208; General Municipal Law § 50—i; Henry v. City of New York, 94 NY2d 275, 278). However, the factor of infancy alone does not compel the granting of a motion for leave to serve a late notice of claim [citations omitted]" (Horn v. Bellmore Union Free Sch. Dist., 139 AD3d 1006, supra, citing Rowe v. Nassau Health Care Corp., 57 AD3d 961, 871 N.Y.S.2d 330 [2 Dept., 2008]; see Lamprecht v. Eastport-S. Manor Cent. Sch. Dist., 129 AD3d 1084, 13 N.Y.S.3d 154 [2 Dept., 2015]; see also Sparrow v. Hewlett-Woodmere Union Free School Dist., 110 AD3d 905, 973 N.Y.S.2d 308 [2 Dept., 2013]; Arias v. New York City Health & Hospitals Corp., 50 AD3d 830, 855 N.Y.S.2d 265 [2 Dept., 2008]).

"The history of section 50—e (5) and the case law demonstrate that a nexus between infancy and delay, while not a requirement, remains a statutory factor that a court should take [*6]into account" (Williams v. Nassau County Med. Ctr., 6 NY3d 531, 814 N.Y.S.2d 580 [2006]). A nexus between infancy and delay can be shown when the delay is the product of the claimant's infancy (see id.; see also Flores v. County of Nassau, 8 AD3d 377, 777 N.Y.S.2d 739 [2 Dept., 2004]). While the lack of a causative nexus may make the delay less excusable, it does not make it fatally deficient (see Williams v. Nassau Cnty. Med. Ctr., 6 NY3d 531, supra). Further, "[t]he absence of an excuse is not fatal where the DOE had actual knowledge of the essential facts constituting the claim, and there was an absence of prejudice" (Fox v. New York City Dep't of Educ., 124 AD3d 887, supra).

Petitioner contends that N.N. has a reasonable excuse for the delay in filing, in that her father prohibited her from commencing an action against the DOE. N.N., therefore, was not legally able to bring an action on her own behalf until after her 18th birthday. Petitioner maintains that as soon as N.N. turned 18, she retained counsel and commenced this action. Petitioner contends that the Court of Appeals in Henry ex rel. Henry v. City of New York (94 NY2d 275, 702 N.Y.S.2d 580 [1999]) "held that the inaction of an infant claimant's parents should not prejudice the infant in tolling the statute of limitations in accordance with General Municipal Law §50" (Notice of Petition, at para. 16). Petitioner avers that even if this Court does not find this to be a reasonable excuse, "such a determination should be trumped by the respondent's actual notice of the relevant facts and lack of prejudice in defending against the claim" (see Notice of Petition, at para 18).

Respondent contends that petitioner offers no proof supporting counsels contention that plaintiff was prohibited by her father to commence an action, and therefore had to wait until she turned 18. Respondent avers that "although the infancy toll operates to extend the statute of limitations, thereby permitting the court to consider Petitioner's application, merely invoking the toll does not require recognition of a grant of late notice of claim" (Affirmation in Opposition at para 24). Respondent further contends that there is no proof submitted that N.N. lacked the capacity to understand the nature of what occurred, and therefore no nexus between her infancy and the delay.

In the instant case, N.N. turned 18 in September of 2015.[FN6] The instant motion for leave to file a late notice of claim was filed in November 2015. Counsel stated in his Affirmation in Reply, that "[o]nce Petitioner turned 18, she acted diligently in meeting with, retaining, and working with counsel to prepare the Petition. The Petition in this case was filed less than six weeks after Petitioner turned 18" (para. 16). Petitioner contends that her father forbade her from commencing this action while she was underage, and that N.N.'s inability to commence an action until her 18th birthday serves as a nexus between her infancy and the delay in filing. In support of this contention, petitioner solely relied on her own affidavit.

N.N. communicated her desire to commence an action to her parents, which demonstrates that she did not lack the capacity to make the alleged abuse known (see Doe v. Goshen Cent. School Dist., 13 AD3d 526, 787 N.Y.S.2d 75 [2 Dept., 2004]). However, in Doe v. N. Tonawanda Cent. Sch. Dist., the Appellate Division, Fourth Department, found that "the refusal [*7]of [petitioner's] legal guardians to initiate a claim on her behalf", coupled with the application for leave made one day after her 18th birthday, constituted a reasonable excuse for the delay based upon her infancy (88 AD3d 1289, 930 N.Y.S.2d 371 [4 Dept., 2011], lv denied 19 NY3d 838, 969 N.E.2d 211 [2012]; see generally Lewis v. E. Ramapo Cent. Sch. Dist., 110 AD3d 720, 972 N.Y.S.2d 326 [2 Dept., 2013] [where the Appellate Division, Second Department found that although petitioner's parents "did not take any steps to enforce her rights or remedies", this was not "sufficient to establish a nexus between her infancy and the failure to serve a timely notice of claim" because "petitioner failed to explain the 15—month delay between the time she reached the age of majority and her commencement of the proceeding"]). Here, because N.N. retained counsel soon after her 18th birthday, and petitioned the court for leave approximately six weeks after she reached the age of majority, the decision in Doe v. Tonawanda Cent. Sch. Dist. compels this Court to conclude that there was a nexus between her infancy and the delay, and that this constitutes a reasonable excuse.[FN7]

However, the Appellate Division, Second Department has repeatedly held that the factor of infancy alone does not compel the granting of a motion for leave to serve a late notice of claim (see Horn v. Bellmore Union Free Sch. Dist., 139 AD3d 1006, supra; Lamprecht v. Eastport-S. Manor Cent. Sch. Dist., 129 AD3d 1084, supra; Sparrow v. Hewlett-Woodmere Union Free School Dist., 110 AD3d 905, supra).

Actual Knowledge

The court must consider whether the school district, its attorney or insurance carrier acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter (see Horn v. Bellmore Union Free Sch. Dist., 139 AD3d 1006, supra). "In order to have actual knowledge of the essential facts constituting the claim, [the school district] must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; [the school district] need not have specific notice of the theory or theories themselves" (Saponara v. Lakeland Cent. Sch. Dist., 138 AD3d 870, supra, quoting Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, 851 N.Y.S.2d 218 [2 Dept., 2008]). "[K]nowledge of the accident itself and the seriousness of the injury does not satisfy this enumerated factor where those facts do not also provide the public corporation with knowledge of the essential facts constituting the claim" (see Horn v. Bellmore Union Free Sch. Dist., 139 AD3d 1006, supra, quoting Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, supra).

"Generally, the phrase facts constituting the claim' is understood to mean the facts which would demonstrate a connection between the happening of the accident and any negligence on the part of the public corporation" (Matter of Romeo v. Long Island Power Authority, 133 AD3d 667, 19 N.Y.S.3d 316 [2 Dept., 2015]; see Quinn v. Wallkill Cent. Sch. Dist. Bd. of Educ., 131 [*8]AD3d 1063, 16 N.Y.S.3d 277 [2 Dept., 2015]; Placido v. Cnty. of Orange, 112 AD3d 722, 977 N.Y.S.2d 64 [2 Dept., 2013]). "The public corporation must have notice or knowledge of the facts constituting the specific claim and not merely some general knowledge that a wrong has been committed (Stewart v. Westchester Inst. for Human Dev., 136 AD3d 1014, 25 N.Y.S.3d 656 [2 Dept., 2016], citing Matter of Devivo v. Town of Carmel, 68 AD3d 991, 891 N.Y.S.2d 154 [2 Dept., 2009]; see Candino v. Starpoint Cent. Sch. Dist., 115 AD3d 1170, 982 N.Y.S.2d 210 [4 Dept., 2014] aff'd sub nom. 24 NY3d 925, 17 N.E.3d 1134 [2014]).

Petitioner contends that the DOE was made aware of the allegations against Shaynak in a timely manner (see Verified Petition at para. 6). In support of her application, petitioner provided various newspaper articles, the District Attorney's press release and a report from the New York City School District Investigator's investigation into the hiring and retention of Shaynak based on his arrest.[FN8] Petitioner contends that notwithstanding the fact that the DOE did not have actual notice of the specific facts of N.N.'s allegations until more than one year after the last communication, this is not fatal to the relief sought because no single element is solely determinative (see Affirmation in Reply at para 6). Plaintiff contends that although actual notice is important in determining the element of prejudice, it is not a necessary element (see Affirmation in Reply at para 8 ["Certainly, had the Court wished to make actual notice a necessary element, it would have done so"]).

Respondent contends that the DOE did not have actual knowledge of petitioner's claim until she filed and served this application in November 2015, which is almost two years after the alleged incidents. Respondent avers that the instant application is directly distinguishable from Matter of T.T. v. New York City Department of Education (48 Misc 3d 607, 7 N.Y.S.3d 876 [Sup Ct., 2015]). In T.T., the petitioner reported the incident to the police approximately one month after the explicit text message was sent. The Special Commissioner of Investigation promptly began an investigation into the incident shortly after expiration of the 90-day statutory period. Respondent maintains that none of the reports which provided notice within a reasonable time in T.T., make any specific reference to N.N. Respondent further contends that none of these documents provide the DOE with actual notice of the facts and circumstances underlying N.N.'s claim. The NYC School District Investigator report was prepared following an investigation into the hiring of Shaynak by the DOE, not following an investigation into allegations made by petitioner or any other student. Further, respondent contends that the report constitutes hearsay and is therefore inadmissible.

In the instant case, petitioner's application for leave was e-filed on November 9, 2015, which is almost one year after the 90-day statutory period expired. In support of her application, petitioner provided (1) a New York Times article about Shaynak's arrest dated August 26, 2014; (2) the District Attorney's Press Release regarding Shaynak's arrest dated September 30, 2014; (3) the Special Commissioner of Investigation for the New York City School District's report dated November 20, 2014; and (4) this Court's decision in Matter of T.T. v. New York City Department of Education. This evidence, alone, is insufficient to establish that respondent's had actual knowledge of the essential facts constituting the claim for two reasons: (1) the facts of the [*9]instant case are distinguishable from the facts before this Court in T.T.; and (2) these documents do not demonstrate the essential facts constituting N.N.'s claim.

As an initial matter, this Court agrees with respondent's contention that the facts of this case are distinguishable from Matter of T.T. v. New York City Department of Education. First, although these actions involve alleged negligence related to Shaynak, in T.T., the petitioner was the recipient of the sexually inappropriate message from Shaynak. Shaynak was first indicted for sending the explicit photograph to T.T. Petitioner T.T. informed the police of Shaynak's behavior within a short window of time which sparked the investigation of Shaynak, and ultimately his arrest. Approximately one month later, Shaynak was again indicted on 36-counts which involved a number of charges from several other students.

Second, and more importantly, in T.T., the 90-day statutory period expired on September 24, 2014, and her application for leave to file a late notice of claim was made on December 22, 2014, less than three months later. In T.T., this Court, in its discretion, found that the DOE received actual knowledge of the essential facts of petitioner's claim within a reasonable time after the 90-day statutory period expired because the investigative report was sent to DOE counsel only nine days after expiration of the statutory period and T.T. made an application seeking leave only three months after expiration of the statutory period. In contrast, in the instant case, petitioner made her application for leave to file a late notice of claim nearly one year after expiration of her 90-day statutory period. This is not a reasonable time after the expiration of the statutory period. Although petitioner had a reasonable excuse for that delay due to her infancy, that factor alone does not compel the granting of a motion for leave to serve a late notice of claim (see Horn v. Bellmore Union Free Sch. Dist., 139 AD3d 1006, supra). This court must consider all of the factors and actual knowledge is "of great importance" (Mohamed v. New York City, — AD3d. —, supra).

Furthermore, the documents provided in support of petitioner's application do not demonstrate the essential facts constituting N.N.'s claim. With respect to the factor of actual knowledge, unlike reasonable excuse, this Court is not bound by Doe v. N. Tonawanda Cent. Sch. Dist. (88 AD3d 1289, supra). In Doe, similar to the instant case, the petitioner was allegedly sexually abused by a male teacher employed by the school district. The Appellate Division, Fourth Department found that the school district had obtained actual knowledge of petitioner's claims because they had conducted an investigation based on accusations of other students. The teacher was arrested, prosecuted, and convicted. Civil actions were initiated against the school district on behalf of the other students.[FN9]

However, three years later, the Appellate Division, Fourth Department, in Matter of Candino v. Starpoint Cent. School Dist., held that knowledge of one student's claim did not necessarily impute actual knowledge to the school district in another claim by a different student (115 AD3d 1170, supra). In Candino, the petitioner was a student, who sought leave to file a notice of claim five months after reaching the age of majority. Petitioner allegedly contracted herpes from another student while participating in a school wrestling tournament. The student [*10]claimed that the school district received actual knowledge because (1) another student had filed an earlier notice of claim with the same allegations; and (2) because the Erie County Department of Health, after learning of the first students' allegations, issued a health advisory which identified the schools that participated in the wrestling tournament. However, the Appellate Division, Fourth Department held that this was insufficient to establish that the school district had actual knowledge of the essential facts underlying petitioner's claim, because there was nothing in the notice of claim filed by the other student or in the health advisory which gave them knowledge that claimant was similarly injured. This decision was affirmed by the New York State Court of Appeals (24 NY3d 925, 17 N.E.3d 1134 [2014]).

This Court is not bound by Doe in its analysis of actual knowledge because three years later in Candino, the Appellate Division, Fourth Department, no longer followed the reasoning utilized in Doe. Furthermore, it is clear that in the Second Department, when considering whether respondents had actual knowledge within a reasonable time after the statutory period, trial courts shall consider whether respondents have knowledge of the facts that underlie the legal theory or theories on which liability is predicated, not just notice of the theories themselves (see Saponara v. Lakeland Cent. Sch. Dist., 138 AD3d 870, supra; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, supra).

Here, although both T.T. and N.N. allege similar claims which consist generally of sexual harassment and sexual assault by the same teacher, the incidents which occurred are separate and distinct. These claims did not arise out of the same transaction or occurrence. It would be impossible to say that the DOE's actual knowledge of Shaynak's inappropriate relationship with T.T., gives them knowledge of his inappropriate relationship with the other students. Knowledge of the legal theories, negligent hiring, retention and supervision, sexual harassment, sexual assault, is not enough. Petitioner is required to demonstrate that the DOE had knowledge of the essential facts underlying those legal theories, and in the instant case, N.N. failed to do so.

The documents relied on by petitioner, the latest of which is dated November 20, 2014, show that the DOE had knowledge of Shaynak's arrest, and his involvement with multiple female students within a reasonable time after plaintiff's arrest. They show the legal theories. However, they fail to reference N.N. specifically, or to provide any of the essential facts underlying N.N.'s claims herein. The district attorney's press release gives a general recitation of the charges against Shaynak. Although the press release references that Shaynak took one student to a nude beach, without more, this is insufficient to provide the DOE with actual knowledge of N.N.'s claim of alleged kidnapping. Petitioner's proof in support of her application, at most, establishes that the DOE had constructive knowledge of her claim (see Candino v. Starpoint Cent. Sch. Dist., 115 AD3d 1170, supra). As stated above, knowledge of the incident itself, or even the seriousness of the injury, without more, does not satisfy this enumerated factor (see Horn v. Bellmore Union Free Sch. Dist., 139 AD3d 1006, supra; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, supra).

Furthermore, assuming that the notice of claim annexed to the instant application is sufficient to apprise the DOE of the essential facts which underlie the legal theories of N.N.'s claims, this application was made nearly one year after expiration of the statutory 90-day period. This does not apprise the DOE of actual knowledge within a reasonable time (see generally Ramirez v. City of New York, — AD3d. —, 2016 NY Slip Op. 03486 [2 Dept., 2016]). Accordingly, petitioner failed to demonstrate that the DOE had actual knowledge of the essential facts within 90 days or a reasonable time thereafter.

[*11]Substantial Prejudice

The purpose of the notice of claim requirement is to protect public corporations against stale claims and to give them an opportunity to timely and efficiently investigate tort claims (see generally Felice v. Eastport/S. Manor Cent. Sch. Dist., 50 AD3d 138, supra; see also Peterson v. New York City Dep't of Envtl. Prot., 66 AD3d 1027, 887 N.Y.S.2d 269 [2 Dept., 2009]). In seeking leave to file a late notice of claim, petitioner has the burden of showing a lack of prejudice (see Borrero v. New York City Housing Authority, 134 AD3d 1104, 22 N.Y.S.3d 540 [2 Dept., 2015]; Nurena v. Westchester Cnty., 120 AD3d 781, supra). "Proof that the defendant had actual knowledge is an important factor in determining whether the defendant is substantially prejudiced by such a delay" (Wade v. New York City Health and Hospitals Corp., 85 AD3d 1016, 925 N.Y.S.2d 630 [2 Dept., 2011], quoting Williams v. Nassau Cnty. Med. Ctr., 6 NY3d 531, supra).

Petitioner contends that because the DOE conducted an investigation into Shaynak's hiring and retention after his arrest, the DOE would not be prejudiced by the delay in filing a notice of claim in the instant case. Petitioner avers that should the DOE require further investigation, they have access to further materials and witnesses. Petitioner further contends that "the availability of Shaynak's personnel file, the ongoing police investigation, as well as the DOE's access to witnesses who are likely still employed by or attending Brooklyn Technical High School, demonstrate a lack of prejudice resulting from the brief delay in filing the Notice of Claim" (see Notice of Petition at para 8). Petitioner contends that even assuming that N.N. came forward within the 90-day statutory period, the DOE would have been in the same situation. Petitioner maintains that the investigation conducted by the DOE through the NYC School District Investigator was sufficient with respect to the hiring and retention of Shaynak.

Respondent contends that N.N. "cannot possibly meet her burden of establishing lack of prejudice" because the DOE did not have actual notice of the essential facts of N.N.'s alleged sexual assault, due to her failure to report it to authorities for approximately two years following accrual of her claim (Affirmation in Opposition, at para 33). Respondent avers that once Shaynak was arrested, the facts and circumstances of any allegations of sexual misconduct became inaccessible to the DOE, and thereafter under the control of the Kings County District Attorney's office. The DOE, therefore, did not have access to those records for the purpose of an investigation into N.N.'s alleged abuse. Respondent maintains that they would be further prejudiced by the delay, and would not have an opportunity to investigate the allegations fully until the criminal matter is resolved. Further, the memories and availability of witnesses have inevitably been affected by the delay.

In the instant case, petitioner failed to meet her burden and establish that the DOE is not prejudiced by the delay of approximately one year. Although petitioner provided proof that the DOE conducted an investigation into Shaynak's hiring within the 90-day statutory period, there is no evidence that the DOE was able to conduct an investigation with respect to N.N.'s claims, individually. Therefore, petitioner failed to rebut the DOE's assertions that the one year delay in commencing this proceeding would substantially prejudice its ability to investigate the facts and examine witnesses while their memories are still fresh (see Lamprecht v. Eastport-S. Manor Cent. Sch. Dist., 129 AD3d 1084, supra).

Conclusion

Although petitioner demonstrated that her infancy provided a reasonable excuse for the delay in filing a late notice of claim, she failed to prove that the DOE had actual knowledge of [*12]the essential facts of the claim within 90 days or a reasonable time thereafter. She further failed to demonstrate that the DOE would not be prejudiced if this Court granted an extension of time to file her notice of claim one year after the expiration of her statutory 90-day period. Accordingly, petitioner's application for leave to file a late notice of claim is denied. Inasmuch as leave to file a late notice of claim is denied, this Court need not address the issue of the sufficiency of petitioner's notice of claim.

The foregoing constitutes the decision and order of this Court.

E N T E R:

__________________

Hon. Lara J. Genovesi

J.S.C. Footnotes

Footnote 1:Counsel for petitioner failed to provide her exact age at the time the alleged inappropriate conduct occurred. At oral argument, counsel stated that this was in an attempt to protect petitioner's identity, as a victim of sexual assault.

Footnote 2:Although plaintiff alleges in her proposed notice of claim that she was approximately 13 years of age at the time the inappropriate relationship began, based on this Court's estimation, petitioner was 14 or 15 years of age if the relationship occurred between 2012 and 2014.

Footnote 3:One media report indicated that Shaynak dressed as a French maid and as Britney Spears while chaperoning prior costume parties thrown by the school.

Footnote 4:The notice of petition, affirmation in opposition, and reply affirmation from Matter of J.J. was annexed to the City's affirmation in opposition herein. A copy of the decision of the Hon. David B. Vaughn was provided to this Court at oral argument, on consent. In J.J. the court held that the facts were distinguishable from this Court's decision in T.T. in that J.J.'s application was brought fifteen months after expiration of the 90-day statutory period. The court likened the facts to Matter of Candino v. Starpoint Cent. School Dist. (115 AD3d 1170, supra) and found that in J.J. the DOE did not receive actual knowledge within a reasonable time after expiration of the statutory period.

Footnote 5:In her proposed notice of claim, petitioner also describes incidents of kidnapping and forced consumption of alcohol in her proposed notice of claim. Petitioner provided a date certain for the kidnapping, claiming that it occurred September 13, 2013. With respect to the forced consumption of alcohol, petitioner alleges that this occurred at Shaynak's home in January of 2014. However, inasmuch as these incidents occurred off school property, the Department of Education had no custody or control of the petitioner and therefore had no duty to monitor or supervise Shaynak's conduct (see Tanysha T. v. City of New York, 130 AD3d 916, 12 N.Y.S.3d 908 [2 Dept., 2015]; MS v. Arlington Cent. School Dist., 128 AD3d 918, 9 N.Y.S.3d 632 [2 Dept., 2015]; "John Doe 1" v. Board of Educ. Of Greenpoint Union Free Sch. Dist., 100 AD3d 003, 955 N.Y.S.2d 600 [2 Dept., 2012]; Pratt v. Robinson, 39 NY2d 554, 384 N.Y.S.2d 749 [1976]). Accordingly, these dates will not be considered in determining the accrual date of this claim.

Footnote 6:Although this action was commenced after petitioner's 18th birthday, her full name is not listed in the caption. Further, petitioner's birthdate was not included in the application. The application only stated that petitioner turned 18 in September of 2015. Counsel for petitioner indicated that this was done in an effort to "protect her identity" as a victim of sexual assault.

Footnote 7:In Doe v. N. Tonawanda Cent. Sch. Dist., Justice Centra, in a dissenting opinion, stated that although he agrees with the majority that petitioner had a reasonable excuse, the delay of service was not solely caused by the infancy because "claimant reported the abuse to her parents and the police, her parents decided not to commence a civil action on her behalf". Therefore, Justice Centra concluded that "there was no indication that [claimant] lacked the capacity to complain and make the abuse known" (88 AD3d 1289, supra, [2011, Centra J., dissenting]). This Court is constrained to follow the majority.

Footnote 8:This Court notes that in the affirmation in reply, petitioner stated that "[p]etitioner does not contend that the DOE had actual notice of N.N.'s specific allegations within 90 days of the alleged sexual misconduct by Shaynak" (Affirmation in Reply at para 6).

Footnote 9:In dissent, Justice Centra stated that the petitioner in Doe "failed to establish that respondent had timely actual notice of the claim", stating that "[a]lthough respondent was aware that its teacher-employee abused several students, there is no evidence to suggest that it ever knew that claimant was one of the victims until almost a decade after the alleged abuse occurred" (88 AD3d. at 1291, supra).