Mosheyev v. N.Y.C. Dep't of Educ.

• Decision Date: 02 November 2016
• Citation: 144 A.D.3d 645,2016 N.Y. Slip Op. 07166,39 N.Y.S.3d 832 (Mem)
• Parties: Michael MOSHEYEV, appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, et al., respondents.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 645

39 N.Y.S.3d 832 (Mem)

2016 N.Y. Slip Op. 07166

Michael MOSHEYEV, appellant,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 2, 2016.

Serhiy Hoshovsky, New York, N.Y., for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Victoria Scalzo of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), entered July 15, 2015, which granted those branches of the defendants' motion which were to dismiss the complaint insofar as asserted against the defendant the New York City Department of Education pursuant to CPLR 3211 (a)(7) and for summary judgment dismissing the complaint insofar as asserted against the defendant City of New York.

ORDERED that the order is affirmed, with costs.

In order to maintain a tort action against a school district, a claimant must serve a notice of claim within 90 days of the alleged injury (see Education Law § 3813[2] ; General Municipal Law § 50–i[1] ; Matter of Quinn v. Wallkill Cent. Sch. Dist. Bd. of Educ., 131 A.D.3d 1063, 1063, 16 N.Y.S.3d 277 ; Robinson v. Board of Educ. of City Sch. Dist. of City of N.Y., 104 A.D.3d 666, 666, 962 N.Y.S.2d 279 ; Bazile v. City of New York, 94 A.D.3d 929, 929, 943 N.Y.S.2d 131 ).

Here, the plaintiff's service of a late notice of claim upon the defendant New York City Department of Education (hereinafter the DOE) was a ity because it was made without leave of court (see Chtchannikova v. City of New York, 138 A.D.3d 908, 909, 30 N.Y.S.3d 233 ; Robinson v. Board of Educ. of City Sch. Dist. of City of N.Y., 104 A.D.3d at 666, 962 N.Y.S.2d 279 ; Wollins v. New York City Bd. of Educ., 8 A.D.3d 30, 31, 777 N.Y.S.2d 637 ). As the plaintiff failed to seek leave to serve a late notice of claim or to deem the notice of claim timely served nunc pro tunc before the statute of limitations expired, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against the DOE (see Chtchannikova v. City of New York, 138 A.D.3d at 909, 30 N.Y.S.3d 233 ; Robinson v. Board of Educ. of City Sch. Dist. of City of N.Y., 104 A.D.3d at 666, 962 N.Y.S.2d 279 ).

The defendant City of New York established its prima facie entitlement to judgment as a matter of law by showing that the accident occurred on public school premises, and that it does not operate, maintain, or control the public schools (see Mathis v. Board of Educ. of City of N.Y., 126 A.D.3d 951, 953, 7 N.Y.S.3d 182 ; Cohen v. City of New York, 119 A.D.3d 725, 725, 989 N.Y.S.2d 296 ;...