Gerew v. County of Monroe

Lawton, J. (dissenting).

I must dissent. Claimant Gerew’s proposed notice of claim asserts that the county was negligent in certifying and failing properly to administer, maintain and supervise the Rivera home in its "Family Day Care Homes” Program so as to provide the infant claimants with a safe environment. It is further alleged that, because of the county’s failure properly to supervise its program, infant claimants, presently 4 and 6 years of age, were repeatedly sexually abused at the Rivera home from May 1987 to July 1988. Infant claimants’ parent first learned of the sexual abuse on September 14, 1988 and sought leave to file a late notice of claim on January 23,1989.

The majority finds that Supreme Court abused its discretion in granting claimants’ motion because claimants failed to specify the dates that the alleged sexual abuse occurred. Claimants, however, are not alleging that the sexual abuse was the negligent conduct but, rather, that the county failed to administer the program properly. It is the county’s continuing failure to supervise the day care home over a period of time, rather than any specific incidents of sexual abuse, that is the crux of the claim (see, People v Keindl, 68 NY2d 410, 421-422 , rearg denied 69 NY2d 823 ). The county has not been unduly prejudiced by the infants’ inability to specify the dates of the sexual abuse because its own records enable it to investigate its certification and supervision of this day care home. Further, the county was able immediately to investigate the claim of sexual misconduct when it was notified of the abuse on September 14, 1988 and, in fact, after its investigation, petitioned the alleged perpetrator into Family Court.

Claimants’ proposed notice of claim sets forth a recognizable cause of action against the county for failure to supervise its Family Day Care Homes Program (see, e.g., Bartels v County *886 of Westchester, 76 AD2d 517 ); specifies the period during which the failure to supervise occurred; and specifies the damages sustained by the infant claimants, to wit, repeated rape and sexual abuse. This information satisfies the specificity requirement of General Municipal Law § 50-e (2).

Given the circumstances of this case, Supreme Court did not abuse its discretion in granting claimants’ motion to file a late notice of claim against the county for negligent certification and supervision of its Family Day Care Homes Program from May 1987 to July 1988 (see, Chalmers v County of Chemung, 105 AD2d 885 ). Infants who have been subjected to sexual abuse by those to whom their care has been entrusted are commonly unwilling to report the abuse and are unable to recall the specific dates and times when the abuse occurred. To deny these infant claimants the opportunity to pursue their claim solely on this basis is unjust. (Appeal from order of Supreme Court, Monroe County, Rosenbloom, J.—late notice of claim.) Present—Doerr, J. P., Boomer, Lawton, Davis and Lowery, JJ.