(dissenting). 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 [1979], affd 51 NY2d 957 [1980]). A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, but it may not *1764be 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 [2014]). 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 [1995], lv denied 86 NY2d 708 [1995]; Martire v City of New York, 129 AD2d 567, 567 [1987], lv denied 70 NY2d 609 [1987]). 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.
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).
*1765On 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 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 [2010]; Matter of Lauray v City of New York, 62 AD3d 467, 467 [2009]). Moreover, plaintiffs’ reply papers failed to so much as mention the issue of prejudice to the District.
*1766Notably, 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 *1767of 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.
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 School Dist., 191 AD2d 749, 751 [1993]). 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 [2006]; Mazza v City of New York, 112 AD2d 921, 922 [1985]). 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.
Present—Smith, J.P., Peradotto, Carni, Lindley and Whalen, JJ.