| Matter of Billman v Port Jervis School Dist. |
| 2011 NY Slip Op 04668 [84 AD3d 1367] |
| May 31, 2011 |
| Appellate Division, Second Department |
| In the Matter of Denise Billman,Appellant-Respondent, v Port Jervis School District et al.,Respondents-Appellants. |
—[*1] Tarshis, Catania, Liberth, Mahon & Milligram, PLLP, Newburgh, N.Y. (Ari Isaac Bauer ofcounsel), for respondent-appellant Port Jervis School District.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioner appeals from so much of an order and judgment (one paper) of theSupreme Court, Orange County (Lubell, J.), dated February 12, 2010, as granted that branch ofthe motion of the Port Jervis School District which was to dismiss so much of the petition as wasfor leave to serve a late notice of claim with respect to a claim against it to recover damages forpersonal injuries and denied that branch of the petition which was for leave to serve a late noticeof claim with respect to a claim against the Port Jervis School District to recover damages forpersonal injuries, and the Port Jervis School District cross-appeals from so much of the sameorder and judgment as denied that branch of its motion which was to dismiss so much of thepetition as was for leave to serve a late notice of claim with respect to a claim against it torecover damages for wrongful death and granted that branch of the petition which was for leaveto serve a late notice of claim with respect to a claim against it to recover damages for wrongfuldeath. The Town of Deer Park separately cross-appeals from the same order and judgment.
Ordered that the cross appeal by the Town of Deer Park is dismissed as abandoned (see22 NYCRR 670.8 [e]); and it is further,
Ordered that the order and judgment is reversed insofar as appealed from, on the law, and inthe exercise of discretion, that branch of the motion of the Port Jervis School District which wasto dismiss so much of the petition as was for leave to serve a late notice of claim with respect to aclaim against it to recover damages for personal injuries is denied, and that branch of the petitionwhich was for leave to serve a late notice of claim with respect to a claim against the Port JervisSchool District to recover damages for personal injuries is granted; and it is further,
Ordered that the order and judgment is affirmed insofar as cross-appealed from by the PortJervis School District; and it is further,[*2]
Ordered that one bill of costs is awarded to the petitioner,payable by the Port Jervis School District.
In the early hours of the morning of January 26, 2008, 15-year-old Lindsey Billman(hereinafter the decedent) climbed onto the roof of the Anna S. Kuhl Elementary School/PortJervis High School Building. From the roof, the decedent fell through a skylight, causing her tosustain injuries that resulted in her death later that morning.
The decedent's parents, Denise Billman and Peter Billman, served a notice of claim datedFebruary 18, 2008, upon the City of Port Jervis (hereinafter the City) and the Port Jervis SchoolDistrict (hereinafter the School District). The notice of claim alleged that milk crates from theschool cafeteria outside of the school created an attractive nuisance upon which students andother teenagers would climb to ascend to the roof so that they could sit or skateboard on the roof.The notice of claim indicated that the claimants Denise Billman and Peter Billman would beseeking to recover damages for "[p]ersonal injuries, and wrongful death to Lindsey Billman. . . and loss of services sustained by her parents . . . Denise Billmanand Peter Billman." On June 2, 2008, limited letters of administration were issued to DeniseBillman as fiduciary of the decedent's estate (hereinafter the Estate).
By summons dated June 30, 2008, and complaint verified July 1, 2008, Denise Billman, onbehalf of the Estate, and Peter Billman commenced an action against the City and the SchoolDistrict to recover damages for personal injuries and wrongful death. In an order dated May 19,2009, the Supreme Court, inter alia, granted that branch of the School District's cross motionwhich was to dismiss the complaint insofar as asserted by Denise Billman on behalf of the Estate,on the ground that no notice of claim had ever been filed on behalf of the Estate. The SupremeCourt found that because the notice of claim dated February 18, 2008, was served before thelimited letters of administration were issued, neither Denise Billman or Peter Billman had thestanding or authority to serve that notice of claim on behalf of the Estate.
By notice of petition dated September 10, 2009, Denise Billman, as Administratrix of theEstate, commenced this proceeding pursuant to General Municipal Law § 50-e (5) forleave to serve a late notice of claim on the School District and the Town of Deer Park withrespect to the claims alleging personal injuries and wrongful death. The Supreme Court, interalia, granted that branch of the petition which was for leave to serve a late notice of claim withrespect to the claim alleging wrongful death, but denied that branch of the petition which was toserve a late notice of claim with respect to the claim alleging personal injuries, finding that theclaim for personal injuries was untimely, as more than one year and 90 days had passed since thehappening of the event upon which the claim was based (see General Municipal Law§ 50-i [1] [c]).
Contrary to the School District's contention, the Supreme Court providently exercised itsdiscretion in granting the petitioner leave to serve a late notice of claim with respect to her claimagainst the School District to recover damages for wrongful death. The petitioner established thatthe School District acquired actual knowledge of the facts underlying the claim within 90 days ora reasonable time thereafter, and that the delay in serving the notice of claim would notsubstantially prejudice the School District in maintaining its defense on the merits (seeGeneral Municipal Law § 50-e [5]; Williams v Nassau County Med. Ctr., 6NY3d 531, 535, 539 [2006]; Matter of Felice v Eastport/South Manor Cent. School Dist.,50 AD3d 138, 147 [2008]).
However, contrary to the determination of the Supreme Court, the claim to recover damagesfor personal injuries against the School District was not untimely. The one-year-and-90-dayperiod contained in General Municipal Law § 50-i is a statute of limitations to which thetolling provision of CPLR 205 (a) applies, rather than a condition precedent to suit (seeCampbell v City of New York, 4 NY3d 200, 201-202 [2005]). Pursuant to CPLR 205 (a), thepetitioner was entitled to commence a new action within six months after the dismissal of theprior action on May 19, 2009. Accordingly, the petitioner is correct that the Supreme Courtshould not have denied that branch of the petition which was to serve a late notice of claim withrespect to her cause of action against the School District to recover damages for personal injuries.Rather, that branch of the petition should have been granted, for the reasons stated by the [*3]Supreme Court in connection with the wrongful death claim.Covello, J.P., Chambers, Lott and Miller, JJ., concur. [Prior Case History: 2010 NY Slip Op30310(U).]