A. P. v. John W. Lavelle Preparatory Charter Sch.
| Docket Number | 2021-07320,Index No. 151118/17 |
| Decision Date | 24 April 2024 |
| Citation | 2024 NY Slip Op 02205 |
| Parties | A. P., etc., et al., respondents, v. John W. Lavelle Preparatory Charter School, appellant. |
| Court | New York Supreme Court — Appellate Division |
APPEAL by the defendant, in an action to recover damages for personal injuries, etc., from an order of the Supreme Court (Judith N. McMahon, J.), dated October 7, 2021, and entered in Richmond County. The order denied the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint or in the alternative, for summary judgment dismissing the complaint.
Strikowsky Drachman & Shapiro, New York, NY (Sim R Shapiro of counsel), for appellant.
Elefterakis, Elefterakis & Panek, New York, NY (Eileen Kaplan of counsel), for respondents.
MARK C. DILLON, J.P., ANGELA G. IANNACCI, LILLIAN WAN, JANICE A. TAYLOR, JJ.
On this appeal, we are called upon to decide, as an issue of first impression, whether the notice of claim requirements of Education Law § 3813(2) and General Municipal Law § 50-e apply to charter schools. We conclude that those statutes do not require service of a notice of claim prior to commencement of a tort action against a charter school.
In December 2016, the infant plaintiff, A. P., was an eighth-grade, special education student attending the defendant, John W. Lavelle Preparatory Charter School (hereinafter the School), a charter school located in Staten Island. On December 15, 2016, according to A. P., she was walking in the hallway between classes when another student pushed her from behind with two hands and she fell to the floor, injuring her elbow. Immediately after the incident, a teacher at the School, Tytianna Fonville, came out of her classroom upon hearing a commotion in the hallway. Fonville testified at her deposition that she approached A. P., who was surrounded by 5 to 10 students, and A. P. was agitated. Fonville escorted A. P. to the nurse. Ordinarily, school staff were assigned to posts in the hallways to monitor the students during transitions between classes. However, Fonville did not recall seeing someone posted in the vicinity at the time of the incident, and A. P. testified at her deposition that the only adult present at that time was Fonville.
Prior to the incident, according to A. P., she had been bullied at the School, including being physically pushed in the hallways. A. P. testified at her deposition that she had complained to a teacher about these prior incidents and also filled out incident reports. A. P.'s mother similarly testified at her deposition that she had made complaints to School staff concerning such prior incidents, both orally and by email, including an email to the principal sent in October 2016 discussing a prior incident in which A. P. allegedly had been pushed during dismissal.
In May 2017, A. P., by her mother, and her mother individually, commenced this action against the School, alleging, inter alia, negligent supervision based upon the December 15, 2016 pushing incident. After the completion of discovery, the School moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground that the plaintiffs had failed to serve a notice of claim or, in the alternative, for summary judgment dismissing the complaint on the merits. By order dated October 7, 2021, the Supreme Court denied the motion. The School appeals.
The School argues that the complaint must be dismissed because the plaintiffs were required to serve the School with a notice of claim pursuant to Education Law § 3813(2) and General Municipal Law § 50-e prior to commencing suit against it, and it is undisputed that the plaintiffs did not serve such notice or request leave to serve a late notice of claim. However, the School's contention that the plaintiffs were required to serve it with a notice of claim is not consonant with either the statutory language of Education Law § 3813 or the scheme and purpose of the New York Charter Schools Act of 1998 (hereinafter the Charter Schools Act) (Education Law § 2850 et seq.).
Education Law § 3813(2) provides, in pertinent part: "[N]o action or special proceeding founded upon tort shall be prosecuted or maintained against any of the parties named in this section... unless a notice of claim shall have been made and served in compliance with [General Municipal Law § 50-e]" ([emphasis added]; see Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 N.Y.3d 367, 370). "General Municipal Law § 50-e does not, in and of itself, require the service of a notice of claim, but rather simply recognizes that when such a notice of claim is required by other pertinent laws, it must be served in accordance with the strictures of General Municipal Law § 50-e" (Bovich v East Meadow Pub. Lib., 16 A.D.3d 11, 16), such as the provision thereof requiring that service of notices of claim be made within 90 days after the claim arises (see General Municipal Law § 50-e[1][a]).
Before Education Law § 3813 was enacted, notice of claim requirements were written into local municipal charters (see 10th Ann Rep of Jud Council of St of NY, 1944, at 284-296 []). The predecessor statute to Education Law § 3813 was enacted to extend the same protection to school districts, which operated independently from municipalities and, unlike municipal agencies, were subject to suit separately (see H & J Floor Covering v Board of Educ. of City of N.Y., 66 A.D.2d 588, 595-596 []).
Initially, section 3813's predecessor statute only protected school districts, but it was, through the years, expanded by amendment (see H & J Floor Covering v Board of Educ. of City of N.Y., 66 A.D.2d at 595-598; L 1972, ch 434, § 1; L 1978, ch 346, § 1). In its current version, the "parties named" in Education Law § 3813, for whom notices of claim are required, include: "any school district, board of education, board of cooperative educational services, [and] school[s] provided for in article eighty-five of this chapter or chapter ten hundred sixty of the laws of nineteen hundred seventy-four" (id. § 3813[1]; see General Municipal Law § 50-i[1] []).
The reference in Education Law § 3813(1) to schools "provided for in article eighty-five of this chapter" denotes certain schools for the deaf or blind or individuals with disabilities provided for in Education Law § 4201, so-called "4201 schools" (see id. § 4201 et seq.). The reference in section 3813(1) to a school provided for in "chapter ten hundred sixty of the laws of nineteen hundred seventy-four" pertains to the Human Resources School, as it was then called, a school for instruction of children with severe physical disabilities (see L 1974, ch 1060). Education Law § 3813 was amended to include these state-supported schools in 1978 (see L 1978, ch 346 § 1). The bill jacket to the law so amending Education Law § 3813 explained that the purpose of the amendment was to extend the protection of the 90-day notice requirement "now applicable to public schools, to specialized educational institutions supported by state funds" (Senate Mem in Support, Bill Jacket, L 1978, ch 346 at 5; Assembly Mem in Support, Bill Jacket, L 1978, ch 346 at 6).
Education Law § 3813 therefore specifically identifies the entities for which notices of claim are a condition precedent to suit, including not only school districts and boards of education, but also particular state-supported schools. Nevertheless, a charter school, established pursuant to article 56 of the Education Law, is not one of the entities specified therein. The "'maxim expressio unius est exclusio alterius' applies 'in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded'" (Colon v Martin, 35 N.Y.3d 75, 78, quoting McKinney's Cons Laws of NY, Book 1, Statutes § 240; see Matter of Alonzo M. v New York City Dept. of Probation, 72 N.Y.2d 662, 665). Applying that maxim here, we must conclude that since the Legislature expressly set forth the particular entities to which the notice of claim requirement of Education Law § 3813 applies, including through several amendments of the statute, the failure to include charter schools as one of the "parties named" in Education Law § 3813 was intentional. When the Charter Schools Act was enacted, the Legislature could have again amended Education Law § 3813 to include charter schools if it had intended for the notice of claim requirements to be extended to such entities (see People v Corr, 208 A.D.3d 136, 139).
The School contends that even though charter schools are not expressly named in Education Law § 3813, the term "school district," as used in that statute, must be read to encompass charter schools because a charter school is "effectively... a public school." Initially, this argument is undercut by the 1978 legislation amending Education Law § 3813 to expressly include 4201 schools. The legislative history of those amendments explained that the amendments were justified because the State supported "almost entirely, the fiscal needs" of such schools on the premise that "the State has the financial obligation to provide education for all its people" (Senate Mem in Support, Bill Jacket, L 1978, ch 346 at 5; Assembly Mem in Support, Bill Jacket, L 1978, ch 346 at 6). The legislative memoranda continued: "To all intents and purposes,...
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