        SUPREME COURT OF THE STATE OF NEW YORK
              Appellate Division, Fourth Judicial Department

1316
CA 15-00962
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


JANE DOE, AN INFANT, BY HER PARENT AND NATURAL
GUARDIAN, ROBERTA DOE AND ROBERTA DOE,
INDIVIDUALLY, PLAINTIFFS-APPELLANTS,

                      V                             MEMORANDUM AND ORDER

ROCHESTER CITY SCHOOL DISTRICT,
DEFENDANT-RESPONDENT.


SEGAR & SCIORTINO, PLLC, ROCHESTER (JENNIFER LUNSFORD OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

EDWIN LOPEZ-SOTO, GENERAL COUNSEL, ROCHESTER (MICHAEL E. DAVIS OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal   from an order of the Supreme Court, Monroe County (Thomas
A. Stander,   J.), entered August 19, 2014. The order denied
plaintiffs’   motion for leave to amend their notice of claim, complaint
and bill of   particulars.

     It is hereby ORDERED that the order so appealed from is reversed
on the law without costs and the motion is granted.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Jane Doe, a special needs student in defendant,
Rochester City School District (District), as the result of an alleged
assault and rape at Dr. Freddie Thomas High School (Freddie Thomas).
Doe reported the crimes to the Rochester Police Department on March
16, 2012, the date they allegedly occurred, and identified her
assailant as an African-American student enrolled at East High School
(East). She also reported that the attack occurred at lunchtime in
the girls’ restroom adjacent to the cafeteria at Freddie Thomas.
Using video surveillance footage from Freddie Thomas and East during
its investigation, the District determined that the accused rapist
could not have committed the acts alleged by Doe.

     Doe thereafter reported to the police that her assailant was a
white student with brown hair, green eyes, and a small scar on his
neck. She identified the location of the attack as the girls’ locker
room adjacent to the gym at Freddie Thomas and the time of the attack
as the afternoon. The District, again using video surveillance
recordings, investigated Doe’s allegations.

     Plaintiffs timely filed a notice of claim that alleged,
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                                                         CA 15-00962

consistent with Doe’s second report of the incident, that Doe was
forcibly assaulted and raped in a locker room at Freddie Thomas.
Plaintiffs further alleged that Doe’s injuries were the result of the
District’s negligence in failing to provide Doe with adequate
supervision in accordance with her Individualized Education Program
(IEP). At the time of the incident, the IEP required, inter alia,
that the District provide Doe with transportation between her home and
East, where she was enrolled as a student. In addition, the IEP
required the District to provide Doe with an aide who would accompany
her at all times throughout the school day. Plaintiffs allege that on
the day of the attack, Doe walked to Benjamin Franklin High School
(Franklin), which she did not attend, entered the school office, and
asked to go to Freddie Thomas, which she also did not attend. A
teacher allegedly drove her from Franklin to Freddie Thomas, where Doe
remained for the entire school day without supervision.

     Following the commencement of the action, Doe testified at her
deposition that her assailant was an adult African-American male. Doe
recalled that he wore a name tag and she believed that he was a
janitor employed at Freddie Thomas. She testified that he raped her
under the bleachers on the athletic field at Freddie Thomas after
school hours. Plaintiffs thereafter moved for permission to amend
their notice of claim, complaint, and bill of particulars to conform
to Doe’s deposition testimony. We conclude that Supreme Court erred
in denying the motion.

     “Pursuant to [General Municipal Law] section 50-e (6), a court in
its discretion may permit the correction of a notice of claim where
there has been a ‘mistake, omission, irregularity or defect made in
good faith . . . , provided it shall appear that the other party was
not prejudiced thereby’ ” (Betette v County of Monroe, 82 AD3d 1708,
1710). We conclude that Doe’s documented delays in cognitive and
social functioning, together with her fear of the assailant and post
traumatic stress disorder allegedly resulting from the attack, provide
a good faith basis for the amendment sought by plaintiffs (see
generally id.).

     We further conclude that the District is not prejudiced by the
proposed amendment. Contrary to the contention of the District, the
amendment sought by plaintiffs does not make “substantive changes in
the theory of liability” (Mahase v Manhattan & Bronx Surface Tr.
Operating Auth., 3 AD3d 410, 411). Plaintiffs’ theory of liability in
the original notice of claim was that Doe suffered injury as the
result of the District’s negligent failure to provide the level of
supervision that it had previously determined was necessary for her,
i.e., door-to-door transportation and an aide to accompany her at all
times throughout the school day. Plaintiffs’ claim remains that
defendant was negligent in failing to supervise Doe, regardless of the
identity of her assailant or the precise location of the attack.

     Further, we reject defendant’s claim of prejudice based upon its
loss of video surveillance footage of the location of the assault and
rape specified by Doe at her deposition. Defendant was on notice that
Doe was at Freddie Thomas the entire day that the incident occurred,
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                                                         CA 15-00962

and it had “sufficient information to conduct a meaningful examination
into the claim under the circumstances” (Kim L. v Port Jervis City
Sch. Dist., 40 AD3d 1042, 1044). Any prejudice suffered by the
District when its video surveillance recordings were overwritten was
the consequence of its own failure to preserve evidence that it knew
or should have known was potentially relevant.

     Finally, we conclude that the court should have permitted
plaintiffs to amend the complaint and bill of particulars. “A party
may amend a pleading at any time by leave of court, and such leave
shall be freely given (CPLR 3025 [b]), unless prejudice would result
to the nonmoving party or the proposed amendment is lacking in merit”
(Bobrick v Bravstein, 116 AD2d 682, 682). The proposed amendment was
not lacking in merit, nor would it result in prejudice to the District
(see Fusca v A & S Constr., LLC, 84 AD3d 1155, 1157-1158, lv dismissed
18 NY3d 837).

     All concur except CARNI, J., who dissents and votes to affirm in
accordance with the following memorandum: I respectfully dissent.
The service of a notice of claim is a condition precedent to suit.
“The primary purpose served by the notice is prompt investigation and
preservation of evidence of the facts and circumstances out of which
claims arise” (Matter of Ziecker v Town of Orchard Park, 70 AD2d 422,
427, affd 51 NY2d 957). A notice of claim may be amended only to
correct good faith and nonprejudicial technical mistakes, omissions,
or defects, but it may not be amended to substantively change the
nature of the claim (see General Municipal Law § 50-e [6]). It is
well settled that substantive changes to the facts, including, inter
alia, the situs of the incident, are not technical in nature and are
not permitted as amendments to the notice of claim (see Ahmed v New
York City Hous. Auth., 119 AD3d 494, 495-496). Indeed, where the
municipality is misled by the erroneous notice of claim to conduct an
investigation at the wrong situs, that circumstance alone results in
serious prejudice (see Eherts v County of Orange, 215 AD2d 524, 525,
lv denied 86 NY2d 708; Martire v City of New York, 129 AD2d 567, 567,
lv denied 70 NY2d 609). With respect to leave to serve a late notice
of claim, the 1976 amendments to General Municipal Law § 50-e,
liberalizing the conditions upon which, and the time within which,
leave to serve a late notice of claim may be granted, expressly direct
that whether the public corporation did or did not have knowledge be
accorded great weight (see Ziecker, 70 AD2d at 427).

     Because the relevant dates and time periods are critical to the
analysis, I set them forth at the outset. Plaintiffs first alleged
that Doe was assaulted on March 16, 2012, at lunchtime in the girls’
restroom near the cafeteria. She identified her assailant by name and
described him as a known male friend of hers and a fellow student.
Defendant, Rochester City School District (District), and the
Rochester Police Department promptly investigated the incident. The
District reviewed and retained video surveillance depicting the area
outside of the girls’ restroom near the cafeteria, and it empirically
demonstrated that the incident could not have happened as Doe
described. The video was shown to the Rochester Police.
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                                                         CA 15-00962

     On April 5, 2012, after being confronted by the Rochester Police
with the District’s video evidence, Doe changed her story. She then
alleged that the assault happened in the girls’ locker room. This
time, the assailant was described as a white male with brownish hair
and a small scar on the left side of his neck. She alleged that she
met this individual in the school library. The District again
reviewed and retained video surveillance that depicted the area
outside of the girls’ locker room at the time and place alleged by
Doe. That video was also shown to the Rochester Police, and the
investigating officer noted in his report on April 17, 2012, that the
video depicted Doe walking towards the gym alone and that no one
followed her into the girls’ locker room. Additionally, the Rochester
Police determined that there were no white males who fit the
description given by Doe enrolled at Dr. Freddie Thomas High School
(Freddie Thomas).

     On June 1, 2012, plaintiffs’ counsel made a telephone request to
the Rochester Police for the investigation file concerning Doe’s
alleged assault. There is no indication in this record that
plaintiffs’ counsel made a request to the District that it preserve
any particular video recording or all of the District’s video
recordings at every location at Freddie Thomas on March 16, 2012.

     On June 11, 2012, plaintiffs served a verified notice of claim
which alleged that Doe was assaulted in a locker room by an unknown
male who she believed was a student at Freddie Thomas. On October 24,
2012, the District conducted a General Municipal Law § 50-h hearing.
At that hearing, Doe testified that the assailant had “brown” skin and
“black curly hair” and did not have any marks or scars on his body
that Doe observed. However, Doe did report for the first time that
the assailant had a “little black circle” on his neck. Doe testified
that the assault took place in the restroom near the cafeteria.

     Plaintiffs commenced this action on January 28, 2013. The
complaint failed to identify any location where the assault allegedly
occurred. On May 29, 2014, more than two years after the alleged
incident, Doe testified at an examination before trial that she was
assaulted by a male employee, who was “new” to the school, by the name
of “Mr. Lee.” According to Doe’s testimony, she agreed to meet “Mr.
Lee” after school, outside of the building near the bleachers for the
soccer field. Doe described “Mr. Lee” as a black adult male in his
“late 30s or 40s.” According to Doe, “Mr. Lee” did not have any marks
or tattoos, but he did wear glasses.

     On July 2, 2014, more than two years after the alleged incident,
plaintiffs moved for leave to amend the notice of claim pursuant to
General Municipal Law § 50-e (6), or in the alternative, leave to
serve a late notice of claim pursuant to General Municipal Law § 50-e
(5), and for leave to amend the complaint and the bill of particulars
pursuant to CPLR 3025 (b).

     In seeking that relief, plaintiffs offered no evidence or
explanation of why the District would not be prejudiced by the changes
in the notice of claim. It is well settled that it is a plaintiff’s
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                                                         CA 15-00962

burden in the first instance to establish the lack of prejudice when
moving for leave to serve a late notice of claim under General
Municipal Law § 50-e (5) (see Matter of Kelley v New York City Health
& Hosps. Corp., 76 AD3d 824, 829; Matter of Lauray v City of New York,
62 AD3d 467, 467). Moreover, plaintiffs’ reply papers failed to so
much as mention the issue of prejudice to the District.

     Notably, in addition to the overwrite of all other video
recordings by the District’s routine business practice, by the time
plaintiffs moved for the instant relief, Freddie Thomas had been
closed and the staff had either been relocated to different schools or
had left the employ of the District. Moreover, the District was
unable to identify any employee at Freddie Thomas on March 16, 2012,
who fit the name or physical description given by Doe more than two
years after the alleged incident.

     The District contends that it has been substantially prejudiced
by delay and the amorphous evolution of Doe’s version of the incident.
I agree. I respectfully disagree with the conclusion of the majority
that “any prejudice suffered by the District was the result of its own
failure to preserve evidence that it knew or should have known was
potentially relevant.” I first point out that the period within which
to serve a notice of claim is 90 days (see Education Law § 3813 [2];
General Municipal Law § 50-e [1] [a]). The District’s policy at the
time of the incident was to retain all security system video
recordings for 90 days. I can find no fault with that policy. Here,
the District retained the video directly relevant to Doe’s first
version of the alleged incident. Moreover, the District retained the
video recording relevant to Doe’s second version of the attack. It
was not until more than two years later that Doe changed her story to
a third version, which once again alleged a different attacker, a
different location, and a different time. The District fully
cooperated with the Rochester Police in the investigation of Doe’s
first and second versions of the incident. The District was never
advised by the Rochester Police to preserve all video recordings from
all school locations. Plaintiffs’ counsel had an opportunity to make
such a request but failed to do so.

     I also respectfully disagree with the majority’s conclusion that
the identity of the assailant or the precise location of the attack is
not relevant because plaintiffs’ claim remains that defendant was
negligent in failing to supervise Doe. That proposition requires the
premature determination that the attack actually occurred on school
premises and/or while school was in session. Importantly, the
District’s diligence in investigating the first version established
that the attack could not have happened where and when Doe reported.
The District’s further diligence in investigating Doe’s second version
again unequivocally established that the attack did not occur where
and when Doe reported. In my view, Doe’s delay and evolving and
misleading descriptions of her attacker and the time and place of the
alleged attack may have deprived a very diligent defendant of the
ultimate defense, to wit: the attack did not happen on school
premises and/or at a time when the District had a duty to supervise
Doe. The prejudice to the District is palpable.
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                                                         CA 15-00962

     I am not unmindful of Doe’s status as a “special needs” student.
However, under the circumstances, the failure to provide the District
with accurate and reliable essential facts has resulted in an
unusually high degree of prejudice to the District in defending this
action which, in my view, serves to substantially outweigh Doe’s
disability (see generally Matter of Donald E. v Gloversville Enlarged
Sch. Dist., 191 AD2d 749, 751). It is well settled that the
determination whether to permit service of a late notice of claim or
to permit an amendment to the notice of claim is discretionary, and
will not be disturbed absent a clear abuse of that discretion (see
Williams v Nassau County Med. Ctr., 6 NY3d 531, 539; Mazza v City of
New York, 112 AD2d 921, 922). In light of the foregoing, I conclude
that Supreme Court did not abuse its discretion, and I would affirm
the court’s order denying leave to serve a late notice of claim and/or
to amend the notice of claim.




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
