| Cassidy v Riverhead Cent. Sch. Dist. |
| 2015 NY Slip Op 04442 [128 AD3d 996] |
| May 27, 2015 |
| Appellate Division, Second Department |
[*1]
| Kathleen E. Cassidy, Respondent, v RiverheadCentral School District et al., Appellant. |
Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia andGlenn A. Kaminska of counsel), for appellants.
Kujawski & Kujawski, Deer Park, N.Y. (Jennifer A. Spellman of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Suffolk County(Garguilo, J.), entered October 24, 2014, as denied that branch of their cross motionwhich was to dismiss the complaint for failure to serve a timely notice of claim pursuantto General Municipal Law § 50-e (5), granted the plaintiff's cross motionfor leave to serve a late notice of claim, and deemed the late notice of claim timely servednunc pro tunc.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,that branch of the defendants' cross motion which was to dismiss the complaint forfailure to serve a timely notice of claim pursuant to General Municipal Law§ 50-e (5) is granted, and the plaintiff's cross motion for leave to serve a latenotice of claim is denied.
On September 20, 2012, the plaintiff allegedly sustained personal injuries in athree-car collision which involved a school bus owned by the defendant RiverheadCentral School District (hereinafter the school district) and operated by an employee ofthe school district, the defendant Sean C. Terry. The plaintiff served a notice of claimdated February 4, 2013, on the school district. The plaintiff thereafter commenced theinstant action by filing a summons and complaint on May 30, 2013, asserting a singlecause of action sounding in negligence. The defendants answered and interposed anaffirmative defense that the plaintiff failed to comply with General Municipal Law§ 50-i and Education Law § 3813.
On March 18, 2014, after the completion of discovery, the plaintiff moved forsummary judgment on the issue of liability. The defendants cross-moved, inter alia, todismiss the complaint for failure to serve a timely notice of claim pursuant to GeneralMunicipal Law § 50-e. On August 15, 2014, the plaintiff cross-moved forleave to serve a late notice of claim. The Supreme Court, inter alia, granted the plaintiff'scross motion for leave to serve a late notice of claim and deemed the notice of claimdated February 4, 2013, timely served nunc pro tunc. The Supreme Court also denied thatbranch of the defendants' cross motion which was to dismiss the complaint for failure toserve a timely notice of claim pursuant to General Municipal Law § 50-e(5).
[*2] Service of a notice of claimwithin 90 days after accrual of the claim is a condition precedent to the commencementof a tort action against a public corporation or any employee thereof (seeEducation Law § 3813 [2]; General Municipal Law§§ 50-e [1] [a]; 50-i [1] [a]; Matter of Manuel v Riverhead Cent. Sch. Dist., 116 AD3d1048 [2014]; Matter ofWalker v Riverhead Cent. Sch. Dist., 107 AD3d 727 [2013]; Bazile v City of New York, 94AD3d 929 [2012]; Matterof Allende v City of New York, 69 AD3d 931 [2010]). A school district is apublic corporation (see Matterof East Meadow Union Free School Dist. v New York State Div. of Human Rights,65 AD3d 1342 [2009]).
Here, the plaintiff's claim accrued on September 20, 2012, the day of the accident.Accordingly, the plaintiff was required to serve the notice of claim within 90 daysthereof, i.e., by December 19, 2012. It is undisputed that the plaintiff served the notice ofclaim no earlier than February 4, 2013, approximately seven weeks after the deadline(see General Municipal Law § 50-e [3] [b]). Thus, the plaintiff'snotice of claim was a nullity, since it was served late, without leave of the Supreme Court(see Matter of Katsiouras v Cityof New York, 106 AD3d 916 [2013]; Robinson v Board of Educ. of City Sch. Dist. of City of N.Y.,104 AD3d 666 [2013]; Decoteau v City of New York, 97 AD3d 527 [2012]).
Subject to certain tolling provisions not applicable here, a plaintiff is required tomove for leave to serve a late notice of claim within one year and 90 days of the accrualdate of the claim (see General Municipal Law § 50-e [5];Pierson v City of New York, 56 NY2d 950, 954 [1982]; Stiff v City of New York, 114AD3d 843 [2014]). Where a plaintiff moves for such relief, or to deem a late noticeof claim timely served nunc pro tunc, after the one-year-and-90-day period has expired,the Supreme Court is without authority to grant such relief (see Pierson v City of NewYork, 56 NY2d at 954-956; Robinson v Board of Educ. of City Sch. Dist. of Cityof N.Y., 104 AD3d at 666; Decoteau v City of New York, 97 AD3d at 527).Here, the one-year-and-90-day period expired on December 19, 2013. The plaintiff didnot move for leave to serve a late notice of claim until she made her cross motion onAugust 15, 2014, approximately eight months after the statute of limitations had run.
Accordingly, that branch of the defendants' cross motion which was to dismiss thecomplaint should have been granted, and the plaintiff's cross motion for leave to serve alate notice of claim should have been denied, as the Supreme Court lacked the authorityto grant the plaintiff's cross motion (see General Municipal Law§ 50-e [5]; Matterof Fox v New York City Dept. of Educ., 124 AD3d 887 [2015]; Feliciano v New York City Hous.Auth., 123 AD3d 876 [2014]; Robinson v Board of Educ. of City Sch. Dist. of City of N.Y.,104 AD3d 666 [2013]; Decoteau v City of New York, 97 AD3d at 527).Mastro, J.P., Sgroi, Cohen and Duffy, JJ., concur.