Papers considered: 1. Notice of Motion dated September 6, 2024; Affirmation of Adam T. Mandell, Esq., in Support, dated September 6, 2024, with Exhibit 1; and Affidavit of Jerrica Vandyke in Support, dated August 30, 2024. 2. Affidavit of Scott P. Quesnel, Esq., in Opposition, dated October 25, 2024; and Memorandum of Law in Opposition. 3. Reply Affidavit of Jerrica Vandyke, dated October 28, 2024, with Exhibit 1; and Reply Memorandum of Law. DECISION/ORDER Claimant, Jerrica Vandyke, petitions the Court for an order granting leave to serve a late Notice of Claim, pursuant to General Municipal Law §50-e, and deeming the proposed Notice of Claim timely served nunc pro tunc. Respondent, Catskill Central School District, (“Catskill CSD”), opposes. BACKGROUND Vandyke’s child, B.V., is alleged to have been bullied, harassed and discriminated against while attending Catskill Middle School, a school operated by Catskill CSD. The bullying and harassment are alleged to have caused her severe psychological injuries. Vandyke avers that she became aware of the abuse in May 2022 and promptly telephoned the school’s Principal, Kerry Overbaugh. On May 17, 2022, she reported that two social media accounts containing harassment and bullying content were being widely distributed among the students. Screen shots from these social media postings were emailed to Principal Overbaugh. Later that month, Vandyke consulted with School Counselor, Alex LoBianco, about the bullying. Then, LoBianco spoke with B.V., who described the ongoing abuse and disclosed that she had been harming herself in response to the bullying. Realizing the severity of B.V.’s situation, the local mobile crisis team (“MCAT”) was called in. The MCAT responder spoke with Vandyke, LoBianco and B.V., and B.V. described the daily bullying, name-calling, and mocking social media posts. B.V. acknowledged that she had contemplated suicide. LoBianco and Vandyke agreed that B.V. needed further mental health evaluation. On May 28, 2022, B.V. had a psychiatric evaluation, which determined that she should receive outpatient psychotherapy. Vandyke and Overbaugh agreed that the best way to support B.V.’s mental health was for her to complete the school year remotely. Nonetheless, bullying and cyberbullying continued over the summer, including social media posts which specifically threatened physical attack upon her return to school. Vandyke notified Overbaugh of these threatening social media posts. In August 2022, as school approached, Vandyke requested of Overbaugh that the students responsible for the threats not be placed in the same class with B.V. In response, Overbaugh assured Vandyke that she would handle it. On the first day of the 2022/2023 school year, B.V. reported to Vandyke that all the known aggressors were in all her classes. The following day, Vandyke met with Overbaugh, Assistant Principal Annie Cougar, and LoBianco. At this meeting, B.V. again explained the details of the abuse she was experiencing. On September 9, 2022, Vandyke emailed LoBianco requesting confirmation that the known bullies had been removed from B.V.’s classes. LoBianco responded that none of the students’ schedules would be changed as requested, but the school would monitor B.V.’s situation. In October 2022, B.V. was slapped by another student. This unprovoked attack was reported to Catskill CSD. Days later, the school nurse reported to Vandyke that B.V. had been bitten by another student. On October 21, 2022, Vandyke sent an email to LoBianco reporting the attacks. On October 24, 2022, a SnapChat was circulated which included a threat to “beat up” B.V. After leaving a voicemail with Beth Daly, Social Worker, Vandyke spoke with an office secretary who said she would radio the Assistant Principal and apprise her of same. Another incident of cyberbullying was reported to Catskill CSD in late October 2022. On December 13, 2022, B.V. was tripped and fell off bleachers at the school. Students took pictures of B.V. while she was crying and then posted them online as another incident of cyberbullying. This was reported to Catskill CSD. On February 9, 2023, in the school cafeteria, several students began calling B.V. names loud enough for all the other students to hear. She left in tears. Cougar called Vandyke to pick B.V. up from school. B.V. has not returned to Catskill Middle School for in-person educational instruction. On March 20, 2023, Vandyke met with Overbaugh, Couger, LoBianco, Daly and Catskill CSD Assistant Superintendent Wilson. Details of the ongoing abuse were reiterated, to which Wilson responded that he would contact BOCES about having B.V. attend a virtual learning program. Vandyke alleges that months passed before B.V. received educational support and when it was finally provided, it was inadequate. Throughout the summer of 2023, lengthy discussions were had about providing accommodations for B.V., who has been diagnosed with anxiety and depression. Homeschooling was presented as the only option. On September 6, 2024, Vandyke filed this motion for leave to file a late notice of claim. She seeks to assert claims of negligent supervision; consequential damages to B.V.’s parent; breach of duty as in loco parentis; and violation of the New York State Dignity for All Students Act. CLAIMANT’S CONTENTIONS REGARDING TIMELINESS Vandyke avers that her claim is timely made because she could not proceed until she was confident that pursuing litigation would not cause further harm to B.V., as she was experiencing severe effects of the psychological injuries, including harming herself and suicidal ideation. After February 9, 2023, when B.V. stopped attending school, Vandyke focused full-time on providing education and mental health services for B.V. Having been removed from the toxic school environment and having received treatment, B.V. is now able to discuss the bullying with others without exaggerating her condition. Vandyke asserts that pursuing legal action while B.V. was experiencing the severe effects of her psychological injuries would have been contrary to B.V.’s interest, and potentially dangerous. Vandyke contends that she provided Catskill CSD with actual knowledge of the bullying commencing in May 2022 and throughout the 2022/2023 school year. In fact, the essence of her claim for negligent supervision is the assertion that Catskill CSD was aware of the bullying and failed to protect B.V. Vandyke also asserts that, due to the tolling of the statute of limitations for infancy, her application for leave is timely. RESPONDENT’S CONTENTIONS Catskill CSD contends that Vandyke’s motion is untimely, as Education Law §3813(2-a) restricts an extension of time to serve a late notice of claim to the time limited for the commencement of the action. The time to commence a tort action against a school district is one year and 90 days, pursuant to GML §50-i(1)(c) and Education Law §3813(2). Catskill CSD argues that, as to the claim for negligent supervision, the Court may allow late notice of claim only if Claimant can demonstrate that her cause of action accrued within one year and 90 days prior to the date leave is sought. Consequently, the Court’s discretion to extend the time to serve a notice of claim is restricted by Education Law §3813(2-a) and GML §50-i(1)(c), which operate as statutes of limitation. Catskill CSD argues that Vandyke’s proposed Notice of Claim identifies the time when the claim accrued as, “during the 2021/2022 and 2022/2023 academic years and continuing to the present [while] the infant claimant was a student at the Catskill Middle School”. It notes that B.V. last attended in-person classes on February 9, 2023. Thus, Catskill CSD argues that B.V.’s claim accrued, at the latest, on February 9, 2023, because, as of that date, she stopped attending its schools and thus was no longer under its supervision, custody or control. Utilizing February 9, 2023, as the accrual date means that Vandyke had until May 9, 2024, to seek leave to file a late notice of claim. Vandyke’s motion for leave, filed on September 6, 2024, is therefore untimely. Catskill CSD points to Quinn v. Wallkill School District, 215 AD3d 1113 (3d Dept., 2023) for the proposition that Catskill CSD’s duty to protect B.V. ended on February 9, 2023, when she left the school premises for the last time. If the Court determines the motion for leave is timely, an analysis of the factors to be considered nonetheless requires denial of the motion. These factors are: (1) whether Claimant demonstrated a reasonable excuse for the delay; (2) whether the District had acquired actual notice of the facts constituting the claim within 90 days of its accrual; (3) whether B.V. was a minor when the claim arose, and, if so, whether a nexus exists between her infancy and the failure to serve a Notice of Claim; and (4) whether the delay caused Catskill CSD substantial prejudice in its ability to defend against the claim. Catskill CSD argues that Vandyke’s contention that she delayed filing due to B.V.’s experiencing severe symptoms of her psychological injuries is unsupported by competent evidence because Vandyke has failed to submit medical records or reports. Thus, Vandyke has failed to present a reasonable excuse for not serving her Notice of Claim within 90 days. Catskill CSD argues that it did not have actual knowledge of the claim as it lacked actual knowledge that Vandyke believed it had failed to adequately supervise B.V. and, as a result, she continued to be bullied by District students. It also contends that there is no nexus between B.V.’s infancy and the delay in serving a timely Notice of Claim. Finally, Catskill CSD asserts that it has been prejudiced by the delay because some of the evidence of cyberbullying may have been removed from the internet. One incident complained of involves a posting on SnapChat, a website which allows users to post images which are only available for a short time. DISCUSSION/MOTION FOR LEAVE TO SERVE LATE NOTICE OF CLAIM An application for leave to file a late notice of claim is a matter committed to the sound discretion of Supreme Court. See, Babcock v. Walton Cent. Sch. Dist., 119 AD3d 1061, 1062 (3d Dept., 2016); Daprile v. Town of Copake, 155 AD3d 1405, 1406 (3d Dept., 2017). The application is required to be made prior to the expiration of the one year and 90-day statute of limitations, Babcock, supra, 119 AD3d at 1062; GML §§50-e, 50-i(1)(c), including any tolls or extensions. Plaza v. New York City Health & Hospitals Corp., 21 NY3d 983, 984 (2013). Where the putative plaintiff is an infant, the statute of limitations is tolled until her or his 18th birthday. Id.; Matter of Conger v. Ogdensburg City Sch. Dist., 87 AD3d 1253, 1254 (3d Dept., 2011); Mindy O. v. Binghamton City Sch. Dist., 83 Ad3d 1335, 1336 (3d Dept., 2011). As B.V. is still a minor, the Court finds that Vandyke’s application for leave is timely. Considering the statutory factors, the Court finds that Vandyke has offered a reasonable excuse for the delay. Vandyke avers that she believed litigation was not in B.V.’s interests, and potentially dangerous to her, until she felt that B.V. was psychologically healthy enough to discuss the bullying with others. She also alleges that she was consumed with stabilizing B.V.’s mental health and providing home schooling as a direct result of Catskill CSD’s failure to protect her from bullying. Although her application is not supported by medical reports or records, Vandyke is competent to testify regarding her observations and experience as a parent regarding the severe psychological effects B.V. was experiencing, including self-harm and suicidal ideation. The Court finds her affidavit sufficient evidence to establish this excuse as reasonable. Cf., E.L. v. City of New York, 78 Misc.3d 1226(A), 2023 N.Y. Misc. LEXIS 1844 (Sup. Ct., Queens Co., 2023) (“Petitioner Rodriquez attested she was so fearful that her son was demonstrating suicidal behavior that she committed him to a psychiatric ward, where he underwent a three-day observation” and “infant petitioner required months of doctors’ visits to get his life back on track, and was finally transferred to a new school for a fresh start”); Matter of Tonissen v. Huntington U.F.S.D., 80 AD3d 704 (2d Dept., 2011)(attorney’s affirmation insufficient to establish as reasonable excuse for delay that parent was consumed with infant’s care). The Court finds that Catskill CSD had actual knowledge of the essential facts constituting the claim because Vandyke reported the bullying promptly upon learning of it in May 2022 and thereafter as incidents occurred. On May 17, 2022, Vandyke reported incidents of cyberbullying to School Principal Overbaugh and provided the school with screenshots of the internet postings. Furthermore, later that month, Vandyke described the bullying to School Social Worker LoBianco, who then met with B.V., where she detailed the incidents of bullying and revealed that she was self-harming. This resulted in the MCAT team being called in and B.V. having a psychiatric evaluation. Overbaugh and Vandyke agreed that B.V. would complete the school year remotely. Over the summer of 2022, Vandyke provided actual notice to the school of threats to harm B.V. once school resumed. Despite such notice, Vandyke’s request to have B.V. separated from her abusers was ignored, resulting in B.V. being placed in all the same classes with all her known abusers. Vandyke then protested the placement of B.V. to the school officials. Vandyke reported an unprovoked slapping incident in October 2022 and the school advised her of a biting incident later that month. The October 24, 2022, SnapChat threatening to beat up B.V. was reported to the school by Vandyke. The December 13, 2022, incident where B.V. was tripped on the bleachers was reported to the school. Finally, the school was aware of the February 9, 2023, incident of name-calling and reported same to Vandyke. Thereafter, Vandyke sought educational support from Catskill CSD but none was provided resulting in B.V. being homeschooled. The “case law makes clear that actual knowledge ‘is a factor which should be accorded great weight’”. Daprile v. Town of Copake, supra, 155 AD3d at 1406; Babcock v. Walton Cent. Sch. Dist., supra, 119 AD3d at 1063, quoting Matter of Stenowich v. Colonie Indus. Dev. Agency, 151 AD2d 894, 895 (3d Dept., 1989), lv. denied 74 NY2d 615 (1989). The Court finds no clear nexus between the delay and B.V.’s infancy, as the delay was occasioned primarily by the need to stabilize her condition. The Third Department has held that the absence of such a nexus is not fatal where defendant had actual notice and has not shown prejudice. Mindy O. v. Binghamton City Sch. Dist., supra, 83 AD3d 1338; Matter of Hinton v. New Paltz Cent. Sch. Dist., 50 AD3d 1414, 1416 (3d Dept., 2008). Here, Catskill CSD has failed to demonstrate substantial prejudice. While it may be that a SnapChat threat and the photo of B.V. crying are no longer available on the internet, the school district had actual knowledge of the bullying occurring within its school, including threats of harm from other students, physical assaults, and name-calling. Vandyke has copies of some of the alleged internet posts and she provided same to Catskill CSD as she became aware of them. Furthermore, Catskill CSD had actual knowledge that B.V. was harming herself as a result of the abuse as B.V. revealed that directly to LoBianco and the MCAT team. Under these circumstances, the Court finds that the prejudice claimed by Catskill CSD arising from 2 internet posts which may no longer be available does not rise to the level of substantial prejudice. Having found that Vandyke has presented a reasonable excuse, that Catskill CSD had actual knowledge of the underlying facts of the claim, and that no significant prejudice has occurred, the Court grants the motion for leave to serve late notice of claim. Any other contentions of the parties have been considered and are deemed to be without merit or have been rendered academic. Therefore, it is hereby ORDERED, that Vandyke is granted leave to serve a late Notice of Claim; and it is further ORDERED, that the proposed Notice of Claim submitted herein is deemed served, nunc pro tunc, as of September 6, 2024. This shall constitute the Decision/Order of the Court. The Court is e-filing the original of this Decision/Order relieving the parties of their obligations, pursuant to CPLR §2220, regarding filing and entry of same but that does not relieve the parties of their obligation, if any, regarding service of same with notice of entry thereon. Dated: December 10, 2024
