| Miner v City of New York |
| 2010 NY Slip Op 07905 [78 AD3d 669] |
| November 3, 2010 |
| Appellate Division, Second Department |
| Derick Miner, an Infant, by His Mother and Natural Guardian, NicoleMiner, et al., Appellants, v City of New York, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Kristin M.Helmers of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of theSupreme Court, Queens County (Flug, J.), dated August 25, 2009, which denied their motion for leaveto supplement and amend the summons and complaint to add the New York City Board of Educationas a defendant or, in the alternative, to disregard as an irregularity the failure to name the New YorkCity Board of Education in the notice of claim, and granted that branch of the defendant's cross motionwhich was for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied that branch of the plaintiffs' motion which was for leave tosupplement and amend the summons and complaint to add the New York City Board of Education(hereinafter the Board) as a defendant. Since the statute of limitations applicable to the plaintiffs' actionhad expired by the time of the plaintiffs' motion, the plaintiffs were required to rely upon therelation-back doctrine to demonstrate that the claim against the Board should relate back to the date ofthe commencement of the action in November 2005. It was thus incumbent upon the plaintiffs toestablish that (1) the claims against the City of New York and the Board "arose out of the sameconduct, transaction or occurrence," (2) the Board is united in interest with the City, "and by reason ofthat relationship can be charged with such notice of the institution of the action that the [Board] will notbe prejudiced in maintaining its defense on the merits by the delayed, otherwise stale, commencement,"and (3) the Board "knew or should have known that, but for [a] . . . mistake by theplaintiff in originally failing to identify all the proper parties, the action would have been brought againstthe additional party united in interest as well" (Mondello v New York Blood Ctr.—GreaterN.Y. Blood Program, 80 NY2d 219, 226 [1992]; see Buran v Coupal, 87 NY2d 173,179-181 [1995]; Arsell v Mass OneLLC, 73 AD3d 668 [2010]; Brock v Bua, 83 AD2d 61, 69 [1981]). As theSupreme Court correctly found, the plaintiffs failed to demonstrate that the Board and the City areunited in interest (see McClain v City of NewYork, 65 AD3d 1020 [2009]; Myers v City of New York, 64 AD3d 546 [2009]; Corzino v City of New York, 56 AD3d370 [2008]; Perez v City of NewYork, 41 AD3d 378 [2007]; see also Mondello v New York Blood Ctr.—GreaterN.Y. Blood Program, 80 NY2d at 225-226; Davis v Larhette, 39 AD3d 693, 694 [2007]; Teer v Queens-LongIs. Med. Group, 303 AD2d 488, 489 [2003]). Since the [*2]plaintiffs failed to establish this element of the relation-back doctrine, weneed not address the remaining elements.
The City established, as a matter of law, that this action involved an accident that occurred onpublic school premises, and that it does not operate, maintain, or control the school (see Indar v City of New York, 71 AD3d635 [2010]; Leacock v City of NewYork, 61 AD3d 827 [2009]), which falls under "the exclusive care, custody, and control ofthe Board of Education, an entity separate and distinct from the City" (Bleiberg v City of New York, 43 AD3d969, 971 [2007]; see New York City Charter § 521; Education Law §2590-b [1] [a]; McClain v City of NewYork, 65 AD3d 1020 [2009]; Myers v City of New York, 64 AD3d 546 [2009]; Leacock v City of New York, 61 AD3d827 [2009]; Corzino v City of NewYork, 56 AD3d 370 [2008]; Perezv City of New York, 41 AD3d 378 [2007]). Thus, the City demonstrated its prima facieentitlement to judgment of a matter of law and, in opposition, the plaintiffs failed to raise a triable issueof fact. Accordingly, the Supreme Court properly granted that branch of the City's cross motion whichwas for summary judgment dismissing the complaint.
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Leventhal, Hall and Lott, JJ.,concur.