| Kim L. v Port Jervis City School Dist. |
| 2009 NY Slip Op 03138 [61 AD3d 825] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Kim L., Respondent, v Port Jervis City School District,Appellant. |
—[*1] Ostrer Rosenwasser LLP, Chester, N.Y. (Benjamin Ostrer of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Orange County (McGuirk, J.), dated March 28, 2008, which denied,as barred by the doctrine of res judicata, its motion pursuant to CPLR 3211 (a) (5) and GeneralMunicipal Law § 50-e (1) (a) to dismiss the complaint as time-barred, and denied, asacademic, the plaintiff's motion to deem the notice of claim timely served nunc pro tunc or, inthe alternative, for leave to serve a late notice of claim.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Supreme Court, Orange County, for a determination of both motions on themerits.
In February 2005 the plaintiff, Kim L., served upon the defendant a notice of claim alleging,inter alia, that her son, a student at Hamilton Bicentennial Elementary School, had repeatedlybeen assaulted by another student at the school. Thereafter, the defendant conducted oralexaminations pursuant to General Municipal Law § 50-h. In February 2006, the plaintiffcommenced this action against the Port Jervis City School District (hereinafter the defendant). InAugust 2006, after issue was joined, the defendant moved pursuant to CPLR 3211 to dismiss thecomplaint on the ground that the notice of claim did not meet the specificity requirements ofGeneral Municipal Law § 50-e (2) as to the dates, times, and locations of the alleged acts.The defendant also argued that dismissal was warranted because the plaintiff's son failed tocomplete his oral examination under General Municipal Law § 50-h. The Supreme Courtdenied the defendant's motion, finding that the notice of claim, combined with other evidencebefore the court, was adequate. This Court affirmed the Supreme Court's order by order datedMay 29, 2007 (see Kim L. v Port JervisCity School Dist., 40 AD3d 1042 [2007]).[*2]
In July 2007, the defendant moved pursuant to CPLR3211 (a) (5) and General Municipal Law § 50-e (1) (a) to dismiss the complaint astime-barred. The defendant contended that the February 2005 notice of claim was untimely,because it was served more than 90 days after the date of the last occurrence, which was in oraround June 2004 (see General Municipal Law § 50-e [1] [a]), and thatconsequently, the action, which was commenced in February 2006, was untimely since it wascommenced more than one year and 90 days after the happening of the event (seeGeneral Municipal Law § 50-i [1]). The plaintiff opposed the motion and moved todeem the notice of claim timely served, nunc pro tunc, or, in the alternative, for leave to serve alate notice of claim.
The Supreme Court denied the defendant's motion on the ground that this Court haddetermined, on the prior appeal, that the notice of claim was timely served and that thedefendant's argument was barred by the doctrine of res judicata. The Supreme Court also deniedthe plaintiff's motion as academic. We reverse.
Contrary to the Supreme Court's finding, this Court, on the prior appeal, did not address ordecide the issue of timeliness of the notice of claim. On that appeal, the defendant never arguedthat dismissal was warranted because the notice of claim was untimely served. To the extent thedefendant mentioned untimeliness, it did so solely in the context of its purported inability toconduct a meaningful investigation into the plaintiff's claims because of the alleged deficienciesin the notice of claim. Moreover, the plaintiff, in her brief on the prior appeal, specificallyacknowledged that the timeliness of the notice of claim was not before this Court. Thus, theSupreme Court erred in concluding that the defendant was barred by the doctrine of res judicatafrom raising the untimeliness argument on its subsequent motion. We further find on this recordthat the defendant was not precluded by the "single motion rule" from moving to dismiss thecomplaint based upon the alleged untimeliness of the notice of claim (see CPLR 3211[e]; see generally Ramos v City of NewYork, 51 AD3d 753, 754 [2008]). In addition, a defendant may raise the issue of aplaintiff's failure to serve a timely notice of claim at any time prior to trial (see Wade v New York City Health &Hosps. Corp., 16 AD3d 677 [2005]). Since the Supreme Court should have decided thedefendant's motion on the merits, it should have addressed the plaintiff's responsive motion onthe merits as well.
The parties' remaining contentions are without merit, are improperly raised for the first timeon appeal, or have been rendered academic by our determination. Dillon, J.P., Miller, Belen andChambers, JJ., concur.