Harron v Freeport Union Free Sch. Dist.

Annotate this Case

Download PDF

Harron v Freeport Union Free Sch. Dist. 2017 NY Slip Op 33408(U) December 21, 2017 Supreme Court, Nassau County Docket Number: Index No. 607642/17 Judge: Randy Sue Marber 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. INDEX NO. 607642/2017 FILED: NASSAU COUNTY CLERK 12/29/2017 11:38 AM NYSCEF DOC. NO. 26 ..I SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. RANDY SUE MARBER JUSTICE _________________x TRIAL/IAS PART 10 AUDREY HARRON, Index No.: 607642/17 Motion Seque,nce ... 01 Motion Date ..'. 10/10/17 . Plaintiff, -againstFREEPORT UNION FREE SCHOOL DISTRICT, VILLAGE OF FREEPORT and TOWN OF HEMPSTEAD Defendants. ·X Papers Submitted: Notice ofMotion .............................................. x Affirmation in Opposition .............................. x . Reply Affirmation ............................................ x Upon the foregoing papers, the motion by the Defendant, VILLAGE OF FREEPORT (hereinafter the "VILLAGE''), seeking an Order, pursuant to CPLR §§ 3211 (a) (2) and (a) (7), dismissing the Plaintiffs Complaint against the VILLAGE in its entirety, is determined as hereinafter provided. In the instant action, the Plaintiff claims that, on August 28, 2016, she was caused to fall off her bicycle due to a dangerous, defective uneven, poorly maintained, and hazardous condition of the sidewalk located along the east side of Soutij Long Beach Avenue, approximately ninety (90) feet south of the intersection of Archer Avenue (hereinafter the "subject location"), in Freeport (Se~ the Summons and Veri~ed Complaint attached to the Notice of Motion as Exhibit "A"). 1 [* 1] 0 RECEIVED NYSCEF: 12/29/2017 1 of 4 FILED: NASSAU COUNTY CLERK 12/29/2017 11:38 AM NYSCEF DOC. NO. 26 INDEX NO. 607642/2017 RECEIVED NYSCEF: 12/29/2017 The Defendant, VILLAGE, moves to dismiss the Plaintiff's complaint in its entirety on the grounds that the Plaintiff failed to satisfy a condition precedent to the commencement of this action, as the Plaintiff failed to serve the VILLAGE with a Notice of Claim, pursuant to General Municipal Law ("GML") § 50-e. 1 In support of its position, the VILLAGE proffers the Affidavit of Lisa M. DeBourg, the Deputy Village Clerk employed by the VILLAGE (See the Affidavit of Lisa M. DeBourg attached to the Notice of Motion as Exhibit "C"). Ms. DeBourg attests that she conducted a search of all notices of claim received by the Village for the period including and subsequent to August 20, 2016 and August 28, 2016. After a review of the records maintained by the Village's Clerk's Office, Ms. DeBourg attests that the VILLAGE did not receive a notice of claim for an accident on August 20, 2016 or August 28, 2016 involving the Plaintiff at the subject location (Id.). In opposition, counsel for the Plaintiff contends that a notice of claim was properly and timely served upon the Defendant, VILLAGE. The Plaintiff submits an Affidavit from Bethanne Roth, an employee of the Plaintiff's attorney (See the Affidavit of Bethanne Roth attached to the Plaintiff's Affirmation in Opposition as Exhibit "B"). Ms. Roth attests that she mailed the notice of claim to "the Village of Freeport, 46 N. Ocean Avenue Freeport, NY 11520" via certified mail, return receipt requested, on September 29, 2016. Further, counsel for the Plaintiff proffers a "green return card" from its mailing of The Defendant, VILLAGE, also contends that the Plaintiff failed to plead the required service of the notice of claim in the Verified Complaint, pursuant to GML § 50-L However, based upon a review of the Plaintiff's Amended Verified Complaint, this Court finds that the pleading requirement of GML § 50-i was fulfilled (See the Plaintiffs Amended Verified Complaint attached to the Defendant's Reply Affirmation as Exhibit "D"). 1 2 [* 2] 2 of 4 INDEX NO. 607642/2017 FILED: NASSAU COUNTY CLERK 12/29/2017 11:38 AM NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 12/29/2017 ·~.t the notice of claim, which bears a date stamp of "04 Oct '16" and a signature of receipt by "Matos" In reply, counsel for the VILLAGE contends that the Plaintiffs submissions in opposition are insufficient to demonstrate proper service of a notice of claim upon the VILLAGE, in compliance with GML §§ 50-e (3) (a) and (b). Here, ca,unsel for the VILLAGE argues that the notice of claim was not properly addressed, as it only generally indicated the "Village of Freeport" and did not specify a department or offi~e. Moreover, ij the individual, "Matos", who signed the receipt of certified mailing is not 'an authorized . ~ person designated by law to accept service on behalf of the VILLAGE. It is well settled that, in order to commence an action against a municipality, a claimant must serve notice of claim within ninety days of the alleged injµries (GML § 50-e; Morales v. New York City Transit Authority, 15 A.D.3d 580, 581 (2d Dept. 2005). Pursuant to GML § 50-e (3) (a), a notice of claim shall be served "to the person designated by law as one to whom a summons in an action ... " may be delivered. CPLR § 311 (6) prescribes that service of a summons upon a village may be made to "the mayor, clerk, or any trustee". Based on a review of the evidence proffered, it appears tha~ the Plaintiff failed to properly serve a notice of claim on the VILLAGE, as required pursuant to GML § 50-e. Therefore, an action against the Defendant; VILLAGE, cannot be maintained. Accordingly, it is hereby ORDERED, that, the Defendant, VILLAGE's, motion seeking dismissal of the Plaintiffs complaint, pursuant to CPLR § 3211, on the grounds that no action can be 3 [* 3] 3 of 4 INDEX NO. 607642/2017 FILED: NASSAU COUNTY CLERK 12/29/2017 11:38 AM NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 12/29/2017 maintained against the VILLAGE pursuant to GML § 50-e, since a Notice ,of Claim was required to have been served by the Plaintiff as a condition precedent to the instant action, . 1 is GRANTED, and it is further; ,, ORDERED, that, the Plaintiffs claims, as against the Defendant, VILLAGE, are hereby DISMISSED. This constitutes the decision and Order of the court. DATED: ) Mineola, New York December 21, 201 7 ·on.R ndy Sue Marber, J.S.C. ENTERED DEC 2 9 2017 NASSAU COUNTY COUNTY CLERK'S OFFICE 1 J )' I 4. [* 4] 4 of 4 } I

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.