Polvino v. Island Group Admin., Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: FRED T. SANTUCCI
• Citation: Polvino v. Island Group Admin., Inc., 694 N.Y.S.2d 728, 264 A.D.2d 720 (N.Y. App. Div. 1999)
• Decision Date: 13 September 1999
• Parties: 137 Ed. Law Rep. 763, Electra L. POLVINO, etc., respondent, v. ISLAND GROUP ADMINISTRATION, INC., defendant, William Floyd Union Free School District of the Mastics-Moriches-Shirley, appellant.

Page 728

694 N.Y.S.2d 728

137 Ed. Law Rep. 763, Electra L. POLVINO, etc., respondent, v. ISLAND GROUP ADMINISTRATION, INC., defendant William Floyd Union Free School District of the Mastics-Moriches-Shirley, appellant.

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

Sept. 13, 1999.

Ahmuty, Demers & McManus, Albertson, N.Y. (Frederick B. Simpson and Joseph M. O'Connor of counsel), for appellant.

Spizz & Cooper, Mineola, N.Y. (Harvey W. Spizz and Patricia L. Hoffman of counsel), for respondent.

FRED T. SANTUCCI, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT and NANCY E. SMITH, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for bad faith in administering the health insurance claims of the plaintiff's decedent and for violation of New York State Executive Law § 296 and 42 USC § 12101 et seq., the defendant William Floyd Union Free School District of the Mastics-Moriches-Shirley appeals from an order of the Supreme Court, Suffolk County (Seidell, J.), dated April 28, 1998, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it, or to dismiss the first, second, fourth, and fifth causes of action insofar as asserted against it for failure to serve a timely notice of claim pursuant to General Municipal Law § 50-e.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was to dismiss the first and second causes of action sounding in tort and substituting therefor a provision granting that branch of the motion and dismissing those causes of action for failure to serve a timely notice of claim pursuant to General Municipal Law § 50-e; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Under General Municipal Law § 50-e, tort claims against a public corporation such as the defendant William Floyd Union Free School District of the Mastics-Moriches-Shirley (hereinafter the School District), require service of a notice of claim within 90 days after the claim accrues, as a condition precedent to the bringing of an action (see, Matter of Chanecka v. Board of Educ. Broome-Tioga BOCES, 243 A.D.2d 1011, 663 N.Y.S.2d 681).

The plaintiff claimed that the School District negligently and recklessly administered the decedent's health insurance claims from September 18, 1991, to May 3, 1993, and that as a result the decedent was denied home hyperalimentation treatment...