Motta by Motta v. Eldred Cent. Sch. Dist.

• Decision Date: 09 May 2019
• Docket Number: 526614
• Citation: 101 N.Y.S.3d 472,172 A.D.3d 1575
• Court: New York Supreme Court — Appellate Division
• Parties: Anthony MOTTA Jr., an Infant, BY Anthony MOTTA Sr. et al., His Parents, et al., Respondents, v. ELDRED CENTRAL SCHOOL DISTRICT, Appellant.

172 A.D.3d 1575
101 N.Y.S.3d 472

Anthony MOTTA Jr., an Infant, BY Anthony MOTTA Sr. et al., His Parents, et al., Respondents,
v.
ELDRED CENTRAL SCHOOL DISTRICT, Appellant.

526614

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

Calendar Date: March 28, 2019
Decided and Entered: May 9, 2019

101 N.Y.S.3d 474

The Mills Law Firm, LLP, Clifton Park (Christopher K. Mills of counsel), for appellant.

Bergstein & Ullrich, LLP, New Paltz (Stephen Bergstein of counsel) and Rubino Law Firm, Yonkers (JenniElena Rubino of counsel), for respondents.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Aarons, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

172 A.D.3d 1575

Appeals from a judgment and an amended judgment of the Supreme Court (Schick, J.), entered January 16, 2018 and March 27, 2018 in Sullivan County, upon a verdict rendered in favor of plaintiffs.

The facts of this case are familiar to this Court as this matter was the subject of a prior appeal ( 141 A.D.3d 819, 36 N.Y.S.3d 239 [2016] ). Briefly, on June 10, 2013, plaintiffs served defendant with a notice of claim alleging, among other things, that defendant negligently supervised its students and failed to protect plaintiff Anthony Motta Jr. (hereinafter Motta), a student at Eldred Junior–Senior High School, from bullying by other students. Motta and his parents, plaintiffs Anthony Motta Sr.

172 A.D.3d 1576

and Christine Horne, subsequently commenced this action against defendant alleging that Motta sustained physical, mental and emotional injuries due to defendant's negligent supervision of its students and its violation of the Dignity for All Students Act (see Education Law § 10 et seq. [hereinafter DASA] ). Following joinder of issue, defendant moved for summary judgment dismissing the complaint, which motion Supreme Court (McGuire, J.) granted. On appeal, this Court reversed, sustaining Supreme Court's finding that DASA does not provide for a private right of action, but finding a triable issue of fact as to whether defendant adequately supervised the students and, if not, whether such negligent supervision was the proximate cause of Motta's injuries (141 A.D.3d at 820–822, 36 N.Y.S.3d 239 ).

Defendant thereafter filed a second motion for summary judgment, arguing, among other things, that any claim of negligence occurring on or before March 12, 2013 should be dismissed because more than 90 days had elapsed between Motta's transfer to the Board of Cooperative Educational Services (hereinafter BOCES) and the filing of the notice of claim. In turn, plaintiffs cross-moved to amend the notice of claim. Supreme Court (Schick, J.) denied both motions, finding that the notice of claim was timely. Defendant thereafter filed a motion in limine seeking to preclude, among other things, trial testimony concerning DASA, and plaintiffs moved in limine to preclude evidence of a prior delinquency proceeding concerning Motta. Supreme Court denied defendant's motion and granted plaintiffs' motion to preclude. Following a jury trial, the jury rendered a verdict in plaintiffs' favor, awarding Motta $300,000 for past pain and suffering and $640,000 for future pain and suffering, and awarding Motta's parents $30,000 each for psychological injury, humiliation and pain and suffering. Defendant subsequently moved to set aside the jury verdict as

101 N.Y.S.3d 475

excessive and for a new trial, which Supreme Court responded to by entering a judgment and an amended judgment in favor of plaintiffs in the full amount awarded by the jury. Defendant now appeals from the judgment and the amended judgment.¹

Supreme Court did not err in denying defendant's motion seeking to dismiss the complaint based upon plaintiffs' alleged failure to timely file a notice of claim. A plaintiff seeking to bring suit against a school district is required to "serve a notice

172 A.D.3d 1577

of claim on the school district within 90 days of when the claim arises" ( Matter of Kranick v. Niskayuna Cent. Sch. Dist., 151 A.D.3d 1262, 1262, 56 N.Y.S.3d 636 [2017] ; see Education Law § 3813[2] ; General Municipal Law § 50–e [1 ][a]; Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016] ). The purpose of the notice of claim requirement "is to afford school districts an opportunity to investigate claims and obtain evidence promptly while it is still readily available" ( Vine v. John Manville Sales Corp., 158 A.D.2d 842, 843, 551 N.Y.S.2d 640 [1990] [internal quotation marks and citation omitted]; see Matter of McClancy v. Plainedge Union Free Sch. Dist., 153 A.D.3d 1413, 1414, 62 N.Y.S.3d 126 [2017], lv denied 31 N.Y.3d 905, 2018 WL 2013400 [2018] ).

Plaintiffs filed their notice of claim on June 10, 2013, which provided, in relevant part, that the subject claims "began on or about November 14, 2008 when [Motta] was assaulted by another student, followed by a series of bullying events by the same students up to and including the present day." Contrary to defendant's assertion, the fact that Motta began attending BOCES on March 4, 2013 – more than 90 days prior to the filing of the notice of claim – did not end the alleged course of conduct that...