Olzaski v. Locust Valley Cent. School Dist.
| Decision Date | 07 December 1998 |
| Citation | 681 N.Y.S.2d 345,256 A.D.2d 320 |
| Parties | 131 Ed. Law Rep. 472, 1998 N.Y. Slip Op. 10,787 Jennifer OLZASKI, etc., et al., Respondents, v. LOCUST VALLEY CENTRAL SCHOOL DISTRICT, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Ahmuty, Demers & McManus, Albertson, N.Y. (Frederick B. Simpson and Brendan T. Fitzpatrick of counsel), for appellants.
Michael K. Sullivan, Bayville, N.Y. (Andrew C. Morganstern and Michael Shnick of counsel), for respondents.
Before MILLER, J.P., and PIZZUTO, FRIEDMANN and GOLDSTEIN, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for the negligent infliction of emotional distress, etc., the defendants Locust Valley Central School District and Louis Barlow appeal from an order of the Supreme Court, Nassau County (Lally, J.), dated November 5, 1997, which denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against the Locust Valley Central School District.
ORDERED that the plaintiffs are awarded one bill of costs.
The appeal by Louis Barlow must be dismissed since he is not aggrieved by the order appealed from. In addition, that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against him for lack of jurisdiction over his person was not decided by the order appealed from (see, Katz v. Katz, 68 A.D.2d 536, 542-543, 418 N.Y.S.2d 99).
The complaint contains several causes of action including causes of action premised in whole or in part on certain allegations made by the infant plaintiff relating to what is commonly referred to as "AIDS phobia". A note of issue was filed on November 12, 1996. The defendants did not make the present motion for summary judgment, which related to the "AIDS phobia" claims only, until August 1, 1997. The Supreme Court denied the motion as untimely. We affirm.
Pursuant to CPLR 3212(a), as amended effective January 1, 1997 (see, L. 1996, ch. 492), the general rule is that a motion for summary judgment should be made within 120 days after the filing of a note of issue, "except with leave of court on good cause shown" (CPLR 3212[a] ). Although the note of issue in this case was filed before the effective date of the amendment referred to above, we have held that, in such cases, the amendment nonetheless...
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