| O'Connor v Huntington U.F.S.D. |
| 2011 NY Slip Op 06222 [87 AD3d 571] |
| August 9, 2011 |
| Appellate Division, Second Department |
| Patrick J. O'Connor, Respondent, v Huntington U.F.S.D. etal., Appellants. |
—[*1] Steven L. Levitt & Associates, P.C., Williston Park, N.Y. (James J. Daw, Jr., TrevorGomberg, and Jennifer Ann Wynne of counsel), for respondent.
In an action, inter alia, to recover damages for intentional infliction of emotional distress, thedefendants appeal, as limited by their brief, from so much of an order of the Supreme Court,Suffolk County (Mayer, J.), dated March 7, 2011, as denied that branch of their motion whichwas for summary judgment dismissing the third cause of action alleging negligent supervision.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendants' motion which was for summary judgment dismissing the third cause ofaction alleging negligent supervision is granted.
"Service of a notice of claim within 90 days after accrual of the claim is a conditionprecedent to the commencement of an action against a school district" (Matter of Surdo v Levittown Pub. SchoolDist., 41 AD3d 486, 487 [2007]; see Education Law § 3813; GeneralMunicipal Law § 50-e [1] [a]). Although "courts have not interpreted the statute to requirethat a claimant state a precise cause of action in haec verba in a notice of claim" (DeLeonibusv Scognamillo, 183 AD2d 697, 698 [1992]), "a party may not add a new theory of liabilitywhich was not included in the notice of claim" (Semprini v Village of Southampton, 48 AD3d 543, 544 [2008];see Mazzilli v City of New York, 154 AD2d 355, 357 [1989]).
Here, the defendants established their prima facie entitlement to judgment as a matter of lawdismissing the third cause of action alleging negligent supervision by submitting proof that thenotice of claim served by the plaintiff did not mention this theory (see Hudson Val. Mar., Inc. v Town ofCortlandt, 79 AD3d 700, 704 [2010]; Bryant v City of New York, 188 AD2d445, 446 [1992]; Demorcy v City of New York, 137 AD2d 650, 650-651 [1988]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Accordingly, the Supreme Court should have granted thatbranch of the defendants' motion which was for summary judgment dismissing the third cause ofaction alleging negligent supervision. Skelos, J.P., Belen, Hall and Roman, JJ., concur.