Jaworoski v. Sayville Union Free Sch. Dist.
| Decision Date | 27 September 2013 |
| Docket Number | INDEX No. 06-34179,CAL. No. 12-02227QT |
| Parties | JESSICA JAWOROSKI, an infant by her mother and natural guardian, LAURA FONTANE, and LAURA FONTANE, Individually, Plaintiffs, v. SAYVILLE UNION FREE SCHOOL DISTRICT, Defendant. |
| Court | New York Supreme Court |
PRESENT:
Hon. JOHN J.J. JONES, JR.
Justice of the Supreme Court
MOTION DATE 4-24-13
ADJ. DATE 6-19-13
Mot. Seq. # 004 - MotD
BLANGIARDO & BLANGIARDO, ESQS.
ORDERED that the motion by the defendant for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaints in this consolidated action is granted to the extent of granting summary judgment dismissing the first complaint, the second complaint, and the second, fourth, fifth, sixth, and so much of the eighth cause of action in the third complaint as seeks to recover for negligent infliction of emotional distress, and is otherwise denied.
The plaintiffs, Jessica Jaworoski, an infant by her mother and natural guardian, Laura Fontane, and Laura Fontane, individually, commenced three separate actions for negligent supervision against the defendant, Sayville Union Free School District ["the defendant"] as a result of three separate incidents. By order dated August 8, 2008, this court granted the defendant's motion to consolidate all three actions into one action.
In the first complaint (index number 34179/2006), the infant plaintiff, Jessica Jaworoski ("theplaintiff"), seeks to recover damages for personal injuries and emotional distress allegedly sustained by her in December 2003 when she was sexually assaulted by two male students. The plaintiff alleges that after the assault in December 2003, the same male students continued to verbally abuse her for the remainder of that school year (2003-2004). In addition, the plaintiff alleges that on December 19, 2004, malicious rumors were circulated about her by her fellow classmates causing her to suffer harm to her reputation and humiliation, and that she was bullied and harassed during the 2004-2005 and 2005-2006 school years. The plaintiff alleges that all of the aforementioned incidents occurred as a result of the defendant's alleged, inter alia, negligent supervision. Additionally, the plaintiff's mother, Laura Fontane, has a derivative claim. The notice of claim in the first action, which is dated October 24, 2005 and was served on the defendant on November 10, 2005, reiterates that the sexual assault occurred in December 2003, and that the plaintiff continued to be bullied and harassed for the remainder of the 2003-2004 school year and during the following school year (2004-2005). In addition, the notice of claim states that the plaintiff continued to be harassed and bullied in September 2005.
In the second complaint (index number 34402/2007), the plaintiff asserts eight causes of action. The first cause of action alleges that the plaintiff was verbally assaulted on October 16, 2006 by another student named Mariah Redlow and physically assaulted on October 17, 2006 by Ms. Redlow as a result of the defendant's failure to provide adequate supervision. The second, third, and fourth causes of action allege that the plaintiff was the subject of repeated harassment and bullying during the 2004-2005 and 2005-2006 school years and that said harassment continued on January 11, 2007 as a result of the defendant's failure to prevent or stop it. The fifth cause of action alleges that the defendant negligently hired its employees and that as a result, the plaintiff was placed in the charge of incompetent and irresponsible persons who failed to intervene on her behalf. The sixth cause of action is for intentional infliction of emotional distress and the seventh cause of action is a derivative claim by plaintiff Fontane which seeks compensation for the medical expenses incurred by her to care for her daughter. In the eighth cause of action, Fontane seeks damages for loss of consortium and for emotional distress that she allegedly suffered as a result of the acts of the defendant.
The notice of claim in the second action, dated January 4, 2007, which was served on the defendant on January 11, 2007, states that on October 16, 2006, Mariah Redlow harassed, threatened, and verbally assaulted the plaintiff. Mediation was attempted by the dean of students but was unsuccessful. On the following day, October 17, 2006, Ms. Redlow physically assaulted the plaintiff while the plaintiff was "on school grounds."
In the third complaint (index number 34404/2007), which is identical to the second complaint with the exception of the first cause of action, the plaintiff asserts eight causes of action. The first cause of action in this complaint alleges that the plaintiff was assaulted on January 12, 2007 by Mariah Redlow as a result of the defendant's failure to provide adequate supervision. The notice of claim in the third action reiterates that the plaintiff was assaulted by Mariah Redlow on January 12, 2007 as she was leaving her classroom.
The defendant now moves for summary judgment dismissing the complaints. The defendant asserts that the first complaint should be dismissed because the plaintiffs failed to serve a timely notice of claim and failed to move for leave to serve a late notice of claim until after the statute of limitations had expired. The defendant contends that the second complaint should be dismissed since the defendantowed no duty of care to the plaintiff as the incident which gave rise to that complaint occurred off of school property and before the school day began. According to the defendant, the third complaint should be dismissed since the defendant did not breach its duty of supervision and, in any event, any lack of supervision was not the proximate cause of the incident.
Summary judgment is a drastic remedy and should only be granted in the absence of any triable issues of fact (see Rotuba Extruders, Inc. v Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141 [1978]; Andre v Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 [1974]). It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925 [1986]). Failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 318 [1985]). Further, the credibility of the parties is not an appropriate consideration for the Court (S.J. Cape/in Assoc., Inc. v Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478 [1974]), and all competent evidence must be viewed in a light most favorable to the party opposing summary judgment (Benincasa v Garrubbo, 141 A.D.2d 636, 637, 529 N.Y.S.2d 797, 799 [2d Dept. 1988]). Once a prima facie showing has been made, the burden shifts to the party opposing the summary judgment motion to produce evidence sufficient to establish the existence of a material issue of fact (see Alvarez v Prospect Hosp., supra).
With respect to the first complaint, it is well settled that in order to maintain an action against the defendant, the plaintiffs were required to serve a notice of claim within ninety days of the alleged injury (see Education Law § 3813 [2]; General Municipal Law § 50-I [1]; Bazile v City of New York, 94 A.D.3d 929, 943 N.Y.S.2d 131 [2d Dept. 2012]; DeRise v Kreinik, 10 A.D.3d 381, 780 N.Y.S.2d 773 [2d Dept. 2004]), and that a plaintiff's late service of a notice of claim without leave of court is a nullity (see Maxwell v City of New York, 29 A.D.3d 540, 815 N.Y.S.2d 133 [2d Dept. 2006]). While a plaintiff may move for leave of court to file a late notice of claim, he or she must do so within one year and ninety days of the accrual date of his or her claim (see id.; General Municipal Law §50-e [5]). This period is tolled with respect to the infant's claim only, until the infant's eighteenth birthday. (CPLR 208; Cohen v Pearl River Union Free School District, 51 N.Y.2d256, 434N.Y.S.2d 138, 414N.E.2d 639; Bazile v City of New York, 94 A.D.3d 929, 943 N.Y.S.2d 131 [2d Dept. 2012]).
Here, it is undisputed that the plaintiffs served a notice of claim on the defendant on November 10, 2005. In the notice of claim, the plaintiffs allege that "[o]n or about December 2003" rumors were circulated about the plaintiff by several of her classmates. In addition, her classmates harassed, humiliated, and physically and sexually assaulted her. The notice of claim alleges that the plaintiff continued to be harassed and bullied throughout the 2003-2004 and 2004-2005 school years and that when she entered ninth grade in September 2005, more rumors were circulated about her. In her complaint, the plaintiff reiterates these allegations. However, during her examination pursuant to General Municipal Law § 50-h and her deposition, the plaintiff testified that when she started the ninth grade, in September 2005, she was not harassed or bullied, and that no incidents occurred during that month. She testified that she voluntarily decided not to return to school for the rest of the year after completing the month of September 2005 simply because she just did not want to go to school. As a result, she was taught at home from October 2005-June 2006.
In light of the plaintiff's testimony, the...
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