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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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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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