Matter of Diggs v Board of Educ. of the City of Yonkers

[*1] Matter of Diggs v Board of Educ. of the City of Yonkers 2009 NY Slip Op 51755(U) [24 Misc 3d 1235(A)] Decided on August 13, 2009 Supreme Court, Westchester County Giacomo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 13, 2009
Supreme Court, Westchester County

In the Matter of the Claim of Lexiis Fielding Diggs, by her parent and natural guardian, Marla Diggs, Petitioners,

against

Board of Education of the City of Yonkers, The City of Yonkers, Montessori School 11 a/k/a Mark Twain Junior High School and Louis Tirado, Respondent.



1473/2009



DeSimone, Aviles, Shorter & Oxamendi, LLP

For Petitioners

145 Hudson Street- Suite 5C

New York, New York 10013

Frank J. Rubino

Corporation Counsel

For Respondents

City Hall, Room 300

Yonkers, New York 10701

William J. Giacomo, J.

The infant petitioner, Lexiis Fielding Diggs (hereinafter "Lexiis"), by her parent and natural guardian Marla Diggs alleges that in August 2001, Marla became aware that her then seven year old daughter Lexiis had allegedly been assaulted by a school teacher, defendant Louis Tirado ("Tirado") at the school Lexiis attended, identified here as the "Montessori School a/k/a Mark Twain Junior High School" a public school operated by the Board of Education of the City of Yonkers (the "Yonkers BOE").

Lexiis, now approximately 15 years old, and her mother now seek leave to file a late Notice of Claim. The instant application is not petitioners' first attempt to do so.

In June 2002, petitioners filed an order to show cause seeking to file a late Notice of Claim in this matter. By Order dated June 5, 2002, the Hon. Aldo A. Nastasi, now retired, noting that Lexiis was still a minor, cited, among other authority, CPLR 208 and Henry ex rel. Henry v. City of New York, 94 NY2d 275, 702 NYS2d 580(1999), and declined to sign the order to show cause holding that "[a]s a matter of law, any notice of claim filed on behalf of the infant is and would be timely. Thus no order of this Court is necessary with respect thereto." (The "Nastasi Order").

On May 10, 2006, based on the Nastasi Order [FN1], petitioners filed a Notice of Claim identifying the City of Yonkers ("Yonkers"), the Yonkers BOE and Tirado (the "May 2006 Notice of Claim"). In November 2006, Yonkers, the Yonkers BOE and Tirado moved pursuant [*2]to CPLR §2221 to "vacate"[FN2] the Nastasi Order and declare the May 2006 Notice of Claim a nullity ("Respondent's November 2006 Motion"). Petitioners opposed the motion and cross-moved seeking permission to file a late notice of claim. By Order dated March 22, 2007, Justice Nastasi denied both motions on procedural grounds finding they had been brought inappropriately under the index number of the special proceeding that resulted in the Nastasi Order [FN3].

Petitioners have now commenced a new special proceeding seeking, again, to file a late Notice of Claim. Arguing that the Nastasi Order is the "law of the case", petitioners first contend that since they have the right to file a Notice of Claim at any time before Lexiis reaches majority the Court should deem the 2006 filing timely. Petitioners argue that since Yonkers and the Yonkers BOE are "united in interest" there is no prejudice to the City of Yonkers and the 2006 Notice of Claim should be deemed timely filed as to all parties named. In the alternative, petitioners seek leave now, without regard to any prior filings, to file a late Notice of Claim. Petitioners' submit Marla Digg's affidavit in support of the application.

Respondents oppose the application. They argue that this is petitioners' fourth [FN4] attempt to file a late Notice of Claim, for an incident that occurred over eight years ago. Respondents dispute that the Nastasi Order constitutes the "law of the case". They contend that the Nastasi Order is not binding on them because it was never served with notice of entry upon them. Further, they argue that the Nastasi Order was erroneous as a matter of law and respondents contend petitioners admit such. Moreover, noting that the instant application to deem a Notice of Claim served upon the respondent, City of Yonkers, comes "approximately sixty-three (63) months after the alleged occurrence, and approximately sixty (60) months after the time mandated by law for service of the Notice of Claim, to be deemed timely served" (Affirmation in Opposition at ¶5, emphasis in original) and the application to serve a Notice of Claim on the Board of Education of the City of Yonkers comes "more than ninety-five (95) months after the alleged occurrence, and more than ninety two (92) months after the time mandated by law for service of the Notice of Claim" (Affirmation in Opposition at ¶6), respondents argue that the instant application is "overwhelmingly unreasonable". (Affirmation in Opposition at ¶7.) Respondents also argue that the City of Yonkers and the Yonkers BOE are separate and distinct entities and therefore not united in interest and that the prejudice to these parties compels denial of the application. [*3]

In reply, among other arguments, petitioners' counsel raises the fact that he "lost contact" with the petitioner Marla Diggs because of her failure to maintain contact with him as an excuse for the lengthy delay in bringing the instant application. In sur-reply [FN5], respondents argue that the "lost contact excuse" is made without evidentiary support as there is no affidavit or documentary evidence submitted along with the attorney's affirmation, respondents counsel then argues that the evidence they uncovered, shows that petitioners resided at the same address from June 2001 to February 8, 2007.

Is the Nastasi Order the Law of the Case?

At the outset, respondents argument that the Nastasi Order is not binding because petitioners never served it upon the respondents with notice of entry is rejected. While the service of a "copy of a judgment or order with notice of entry serves to commence the running of the time within which a party may appeal (CPLR 5513) and...may impact upon time periods specified in the judgment or order... '[A] determination or judgment of a court may become final and binding, for the purpose of being obeyed, carried out and executed without being final and binding for the purposes of review.' ...Thus, even though service of an order alone is sufficient to enforce it, where a proper notice of entry of such order is never served on the appellant, the time to appeal never starts to run."

Raes Pharmacy, Inc. v. Perales, 181 AD2d 58, 63-64, 586 NYS2d 579, 582 - 583 (1st Dept., 1992), quoting, NY Cent. R.R. Co. v. Pub. Serv. Comm., 238 NY 132, 135, 144 [*4]N.E. 365(1924), and citing 10 Carmody-Wait 2d, NY Prac § 70:138; see also, See also Ensley v. Snapper, Inc., 62 AD3d 403, 403, 879 NYS2d 71, 72 (1st Dept., 2009) [Order was binding on party whose counsel had actual notice of order notwithstanding order was not served with notice of entry].

In addition, petitioners' argument that the Nastasi Order is the "law of the case" with respect to whether any notice of claim filed on behalf of Lexiis is automatically timely if served when Lexiis is a minor is also rejected. While this Court is loathe to disagree with a decision rendered by a fellow jurist whom it holds in the highest esteem, it does not share his opinion. However, in this case such disagreement does not run afoul of the "law of the case" doctrine since it is not applicable here.

To wit, the law of the case doctrine

" " applies only to legal determinations that were necessarily resolved on the merits in the prior decision' " (Gilligan v. Reers, 255 AD2d 486, 487, 680 NYS2d 621, quoting Baldasano v. Bank of NY, 199 AD2d 184, 185, 605 NYS2d 293), and to the same questions presented in the same case." Oyster Bay Associates Ltd. Partnership v. Town Bd. of Town of Oyster Bay, 21 AD3d 964, 966, 801 NYS2d 612, 614 (2nd Dept., 2005)(emphasis added).

The instant action is a new special proceeding therefore, the law of the case doctrine is inapplicable.

The New Application to Serve a Late Notice of Claim

It is well settled that the factor of infancy alone does not compel the granting of a motion for leave to serve a late Notice of Claim. Arias v. New York City Health and Hospitals Corp. (Kings County Hosp. Center), 50 AD3d 830, 855 NYS2d 265 (2nd Dept., 2008). In evaluating applications under General Municipal Law §50-e (5) for filing late notices of claim, the Court "must strike an 'equitable balance . . . between a public corporation's reasonable need for prompt notification of claims against it and an injured party's interest in just compensation' ". Matter of Reisse v. County of Nassau, 141 AD2d 649, 650, 529 NYS2d 371(2nd Dept.,1988), quoting, Camarella v. East Irondequoit Cent. School Bd., 34 NY2d 139, 142-143, 313 NE2d 29, 356 NYS2d 553(1974).

On this petition for leave to serve a late Notice of Claim pursuant to General Municipal Law §50-e(5) or Education Law § 3813, the

"Factors to be considered in determining if a petitioner should be granted leave ...are whether (1) the public corporation (or its attorney or insurance carrier) acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, (2) the petitioner was an infant at the time the claim arose and, if so, whether there was a nexus between the petitioner's infancy and the delay in service of a notice of claim, (3) the petitioner had a reasonable excuse for the delay, and (4) the public corporation was prejudiced by the delay." Formisano v. Eastchester Union Free School Dist., 873 NYS2d 162, 164 (2nd Dept., 2009) [*5]

It is well settled that this Court is vested with broad discretion to grant an extension after considering the relevant facts and circumstances. See, Matter of Callahan v. City of New York, 75 NY2d 899, 554 NYS2d 819, 553 NE2d 1329(1990). Notwithstanding that broad discretion, General Municipal Law §50-e(5) "preclude[s] the court from granting an extension [of the time in which to serve a Notice of Claim] which would exceed the time limited for the commencement of an action by the claimant against the public corporation". Pierson v. City of New York, 56 NY2d 950, 453 NYS2d 615 (1982).

First, the Court considers the requirement that "[t]he municipality must have notice or knowledge of the specific claim and not general knowledge that a wrong has been committed". Matter of Sica v. Board of Education of City of New York, 226 AD2d 542, 543, 640 NYS2d 610 (2d Dept., 1996).

"In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves." Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d at 148, 851 NYS2d 218(2nd Dept., 2008).

A careful review of the submissions here indicate that respondents did in fact have actual knowledge of the essential facts constituting the claim. First it cannot be ignored that criminal charges were filed against Tirado based on petitioners complaint, and following his arrest Tirado was suspended with pay by the respondent Yonkers BOE which indicates that respondent Yonkers BOE had actual knowledge of the claims petitioners were making. See, Melissa G. v. North Babylon Union Free School Dist., 50 AD3d 901, 855 NYS2d 276 (2nd Dept., 2008); Andrew T.B. v. Brewster Cent. School Dist., 18 AD3d 745, 795 NYS2d 718 (2nd Dept., 2005); Kareca Lashawn J. v. Westchester County, 142 AD2d 729, 531 NYS2d 308 (2nd Dept., 1988); Meredithe C. v. Carmel Cent. School Dist., 192 AD2d 952, 597 NYS2d 199(3rd Dept., 1993)[FN6].

As has been recognized, "[t]he presence or absence of any one factor, including the absence of a reasonable excuse, is not necessarily fatal". Gonzalez v. County of Nassau, 57 AD3d 480, 867 NYS2d 920, 921 (2nd Dept., 2008). Notwithstanding same, "[a]ctual knowledge of the essential facts is an important factor in determining whether to grant an extension and 'should be accorded great weight' ". Beretey v. New York City Health & Hospitals Corp. (Elmhurst Hosp. Center), 56 AD3d 591, 593, 868 NYS2d 232, 233 (N.Y.A.D. 2 Dept.,2008), quoting, Matter of Brownstein v. Incorporated Vil. of Hempstead, 52 AD3d 507, 509, 859 [*6]NYS2d 682(2nd Dept., 2008).

Such is the case here. Respondents had actual knowledge of the facts that underlie the legal theory on which liability is predicated. Further, even though the delay here is substantial, the delay has not substantially prejudiced respondents defense. While the submissions indicate that, for example, the principal of the school at the time of the alleged incident retired, there is not indication that this person is now unavailable to give testimony. While respondents make much ado about the fact that Lexiis did not attend Yonkers schools for a period of time, and therefore school records for that period are not presently in their possession, there is no indication that these records do not exist or that respondents made an attempt to secure them by request from petitioners. In short, the Yonkers BOE can obtain the information they argue is lacking through discovery. See, Welch v. Board of Educ. of Saratoga Central School Dist., 287 AD2d 761, 731 NYS2d 94 (3rd Dept., 2001).

Furthermore, the fact that Lexiis was removed from Marla's custody for a period of time based on allegations that Marla physically abused Lexiis implicates the issue of whether Lexiis' infancy had a nexus to the delay in service as well as whether there was a reasonable excuse for the delay. See, Beretey v. New York City Health & Hospitals Corp. (Elmhurst Hosp. Center), supra .

Accordingly, after considering all the relevant facts and circumstances, the application to file a late Notice of Claim is GRANTED to the extent that the subject Notice of Claim dated May 10, 2006 shall be deemed served as to respondents Board of Education of the City of Yonkers and Tirado.

The application, to the extent it seeks to serve Montessori School 11 a/k/a Mark Twain Junior High School is DENIED as respondents correctly argue this is not a legal entity capable of being sued. Similarly the petition as it seeks to file a claim against the City of Yonkers is also denied, as the submissions reveal no nexus between the allegation and the City of Yonkers. Indeed, the Court notes that petitioners fail to dispute these arguments in their opposition papers resulting in a tacit admission of their veracity. See generally, Piltser v. Donna Lee Management Corp., 29 AD3d 973, 974, 816 NYS2d 543, 545 (2nd Dept., 2006).

All arguments raised in the submissions, but not specifically addressed herein, are denied.

The foregoing shall constitute the decision and order of the Court.

Dated: White Plains, New York

August 13, 2009

HON. WILLIAM J. GIACOMO, J.S.C.

cc:

Footnotes

Footnote 1:While Lexiis was still under the age of eighteen.

Footnote 2:A copy of the motion is not annexed to the instant motion therefore the Court has no knowledge if this was a motion to renew or reargue.

Footnote 3:In sum, Justice Nastasi denied the motions, which had been inappropriately brought under the same index number as the special proceeding, because the Nastasi Order "disposed" of that proceeding and it could not be resurrected as requested by the parties.

Footnote 4:Petitioners' third application under the instant index number seeking to file a late notice of claim a against the City of Yonkers, Montessori School 11 a/k/a Mark Twain Junior High School and Louis Tirado in January 2009 was withdrawn. Subsequently the instant petition was filed under the same index number as the third application.

Footnote 5:It is well settled that " ' [t]he function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion' ". TIG Ins. Co. v. Pellegrini, 258 AD2d 658; 685 NYS2d 777(2nd Dept., 1999), quoting, Dannasch v. Bifulco, 184 AD2d 415, 417, 585 NYS2d 360 (1st Dept., 1992). The purpose of the rule against new arguments or evidence in reply is "to prevent a movant from remedying basic deficiencies in its prima facie showing by submitting evidence in reply..." Kennelly v. Mobius Realty Holdings LLC, 33 AD3d 380, 382, 822 NYS2d 264, 266 (1st Dept., 2006). "This rule, however, is not inflexible, and a court, in the exercise of its discretion, may consider a claim or evidence offered for the first time in reply where the offering party's adversaries responded to the newly presented claim or evidence." Id., citing, Fiore v. Oakwood Plaza Shopping Ctr., Inc., 164 AD2d 737, 739, 565 NYS2d 799 (1st Dept., 1991), affd . 78 NY2d 572, 578 NYS2d 115, 585 NE2d 364 (1991), cert. denied 506 U.S. 823, 113 S. Ct. 75, 121 L. Ed. 2d 40 (1992); Hoffman v. Kessler, 28 AD3d 718 (2nd Dept., 2006); Basile v. Grand Union Co., 196 AD2d 836, 837, 602 NYS2d 30 (2nd Dept., 1993); and CPLR 2001. Here, respondents submitted sur-reply. Because the respondents availed themselves of an opportunity to oppose the "new" argument contained in the reply papers, consideration of those arguments offered by petitioners in reply is proper. See, Hoffman v. Kessler, 28 AD3d 718, 816 NYS2d 481 (2nd Dept., 2006); Teplitskaya v. 3096 Owners Corp., 289 AD2d 477, 735 NYS2d 585 (2nd Dept., 2001); Basile v. Grand Union Co., 196 AD2d 836, 602 NYS2d 30 (2nd Dept., 1993).

Footnote 6:As stated by the Second Department recently, "[a]ctual knowledge of the essential facts underlying the claim means 'knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the [proposed] notice of claim; the public corporation need not have specific notice of the theory or theories themselves'." Troy v. Town of Hyde Park, 882 NYS2d 159, 160(N.Y.A.D. 2 Dept.,2009), quoting, Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, 148, 851 NYS2d 218(2nd Dept., 2008)