PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS NEGLIGENT SUPERVISION AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ACTION AGAINST THE DEPARTMENT OF EDUCATION STEMMING FROM THE ALLEGED RAPE OF PLAINTIFF ON SCHOOL GROUNDS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for leave to file a late notice of claim should have been granted for the negligent supervision and negligent infliction of emotional distress causes of action against the Department of Education stemming from the the sexual assault of the plaintiff on school grounds:

The DOE had actual knowledge, within the statutory period or a reasonable time thereafter, of the facts constituting [the] claims, which arose as a result of the alleged rape that occurred on September 28, 2017 … . Furthermore, in light of the DOE’s actual knowledge of the essential facts constituting the claims of negligent supervision and negligent infliction of emotional distress, the plaintiff met her initial burden of establishing a lack of substantial prejudice to the DOE in maintaining a defense with respect to those claims … . In opposition, the DOE failed to make a particularized evidentiary showing that it would be substantially prejudiced if the late notice with respect to those claims was allowed … . “[W]here there is actual notice and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim” … . Doe v City of New York, 2020 NY Slip Op 03768, Second Dept 7-8-20