Sherb v Monticello Cent. Sch. Dist.

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Sherb v Monticello Cent. Sch. Dist. 2017 NY Slip Op 33131(U) July 11, 2017 Supreme Court, Sullivan County Docket Number: 1499-2016 Judge: Mark M. Meddaugh Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] CASE#: 2016-1499 07/20/2017 DECISION & ORDER, MEDDAUGH, 7/11/17 Image: 1 of 4 At a term of the Supreme Court of the State of New York, held in and for the County of Sullivan, at Monticello, New York, on March 30, 2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SULLIVAN -----------------------------------------------------------------X SAMANTHA SHERB, DECISION/ORDER Plaintiffs, Index# 1499-2016 RJI # 52-38505-16 -againstMONTICELLO CENTRAL SCHOOL DISTRICT, Defendants. --------------------------------------------------------------------X Present: Hon. Mark M. Meddaugh, Acting Justice, Supreme Court Appearances; The Post Law Firm, PLLC By: Craig A. Post, Esq. Attorneys for the Plaintiff 4 Executive Blvd., Suite 204 Suffern, NY 10901 Catania, Mahon, Milligram & Rider, PLLC By: Mark L. Schuh, Esq. Attorneys for the Defendants P.O. Box 1479 Newburgh, NY 12550 MEDDAUGH, J.: The Defendant has applied for an Order dismissing the Plaintitrs complaint against the School District in its entirety, with prejudice. This action is upon a claim that the Defendant School District allowed the Plaintiff to be bullied, intimidated and harassed by a fellow student, Terrell Gray, and that the School District failed to take the proper steps to address the bullying and to protect the Plaintiff. The claim arises out of an incident which occurred on June 15, 2015. By Decision and Order and Order dated December 28, 2016, this Court denied Plaintitrs IFILED IN SULLIVAN COUNTY CLERKS OFFICE 7/20/2017 [* 2] CASE#: 2016-1499 07/20/2017 DECISION & ORDER, MEDDAUGH, 7/11/17 Image: 2 of 4 Index# 1499-2016 application, brought by Notice of Motion dated September 6, 2016, which had sought leave to file a late Notice of Claim. The Defendant now argues that the failure to file a Notice of Claim within 90 days of the accrual of the cause of action, requires that the action be dismissed. It is further argued that when a Plaintiffs motion for leave to file a late Notice of Claim is denied, the complaint should also be dismissed. The Plaintiff argues in opposition that the Plaintiff filed a Notice of Appeal to the Court's prior Decision and Order, and if this Court dismisses the action in response to the instant action, it will prevent the Plaintiff from pursuing her action if the prior order is reversed. Therefore, it is requested that any order granting dismissal should indicate that the Plaintiff should not be prevented from reinstating her complaint ifthe prior Order is reversed. Finally, it is argued that any dismissal should be without prejudice, to allow the Plaintiff to take advantage of the savings provision of CPLR §205(a) which permit the commencement of a new action within six(6) months of the date of dismissal. In reply, the Defendant argues that the prior Decision and Order indicates that, by failing to timely file a Notice of Claim, the Defendant was not made aware that the Plaintiff was claiming that her injuries were caused by the Defendant failing to take the proper steps to address the bullying and to protect the Plaintiff. Therefore, the Defendant was found to have suffered substantial prejudice, in that it was deprived of its opportunity to promptly and thoroughly investigate the incident, based not only upon the delay after the expiration of the 90day statutory period, but also on the fact that the alleged bully had since graduated from high school. The Court further found that the Plaintiff failed to proffer an excuse for her delay in filing the Notice of Claim. 2 [* 3] CASE#: 2016-1499 07/20/2017 DECISION & ORDER, MEDDAUGH, 7/11/17 Image: 3 of 4 Index# 1499-2016 CONCLUSIONS OF LAW Timely service of a Notice of Claim is a condition precedent to an action against a municipal corporation (Herrera v Duncan, 13 AD3d 485, 787 N. Y.S.2d 88 [2d Dept 2004]), and since the Plaintiff's request to late file her Notice of Claim was denied, the Defendant's motion to dismiss the complaint should be granted (Weaver v City o(New York, 138 AD3d 873, 29 N.Y.S.3d 539 [2d Dept 2016]; Troy v Town ofHwie Park, 63 AD3d 913, 882 N.Y.S.2d 159 [2d Dept 2009]; De Jesus v eoun/J' ofAlbany, 267 AD2d 649, 699 N.Y.S.2d 563 (3d Dept 1999]). The Court also finds that the dismissal should be with prejudice, since the Plaintiff may not recommence the action without first timely serving a Notice of Claim (see, Davidson v Bronx Mun. Hosp., 64 NY2d 59, 484 N.Y.S.2d 533 [1984]), and the time to seek leave to file a late notice of claim has expired (General Municipal Law§§ 5CH:(5}, 50-i[l][c]; Croce v Ci/J' ofNew York, 69 AD3d 488, 893 N.Y.S.2d 48 [!st Dept 2010]). Furthermore, any application seeking leave to file a late notice of claim will be barred by the law of the case doctrine (see, generally, People v. Evans, 94 N.Y.2d 499, 706 N.Y.S.2d 678 [2000]). The Court further finds that the Defendant's request that the Plaintiff's motion be denied, based on the pending appeal is misplaced. If the Appellate Division determines that the Plaintiff should have been granted leave to file her late Notice of Claim, the Appellate Division can also -direct that the complaint be reinstated (see, e.g., Ali ex rel. Ali v Bunny Realty Corp.. 253 AD2d 356, 676 N.Y.S.2d 166 [!st Dept 1998]; Quirk v Morrissey, 106 AD2d 498, 483 N.Y.S.2d 34(2d Dept 1984]). WHEREFORE, based on the foregoing, it is hereby ORDERED that the Defendant's motion to dismiss Plaintiff's claims against the 3 [* 4] CASE#: 2016-1499 07/20/2017 DECISION & ORDER, MEDDAUGH, 7/11/17 Image: 4 of 4 Index# 1499-2016 Defendant is granted, and the complaint in this action is dismissed, with prejudice. This memorandum shall constitute the Decision and Order of this Court. The original Decision and Order, together with the motion papers have been forwarded to the Clerk's office for filing. The filing of this Order does not relieve counsel from the obligation to serve a copy of this order, together with notice of entry, pursuant to CPLR § SS l 3{a). Dated: July ~. 2017 Monticello, New York ENTER: AJ..w M AN~~ HON. MARK M. MED UGH Acting Supreme Court Ju Papers Considered: 1. 2. 3. 4. Notice of Motion, dated Janaury 10, 2017 Affirmation of Mark L. Schuh, Esq., dated Janaury 10, 2017 Affirmation in Opposition of Craig A. Post, dated March 9, 2017 Reply Affirmation of Mark L. Schuh, Esq., dated March 28, 2017 4

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