Sherb v. Monticello Cent. Sch. Dist., Index # 1499-2016

• Court: United States State Supreme Court (New York)
• Writing for the Court: Hon. Mark M. Meddaugh, Acting Justice, Supreme Court
• Citation: 2017 NY Slip Op 33131 (U)
• Parties: SAMANTHA SHERB, Plaintiffs, v. MONTICELLO CENTRAL SCHOOL DISTRICT, Defendants.
• Docket Number: Index # 1499-2016
• Decision Date: 11 July 2017

2017 NY Slip Op 33131(U)

SAMANTHA SHERB, Plaintiffs,
v.
MONTICELLO CENTRAL SCHOOL DISTRICT, Defendants.

Index # 1499-2016

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SULLIVAN

July 20, 2017
March 30, 2017
July 11, 2017

At a term of the Supreme Court of the State of New York, held in and for the County of Sullivan, at Monticello, New York, on March 30, 2017

DECISION/ORDER
RJI # 52-38505-16

Present: Hon. Mark M. Meddaugh, Acting Justice, Supreme Court

Appearances:

The Post Law Firm, PLLC
By: Craig A. Post, Esq.
Attorneys for the Plaintiff
4 Executive Blvd., Suite 204
Suffern, NY 10901

Catania, Mahon, Milligram & Rider, PLLC
By: Mark L. Schuh, Esq.
Attorneys for the Defendants
P.O. Box 1479
Newburgh, NY 12550

MEDDAUGH, J.:

The Defendant has applied for an Order dismissing the Plaintiff's complaint against the School District in its entirety, with prejudice.

This action is upon a claim that the Defendant School District allowed the Plaintiff to be bullied, intimidated and harassed by a fellow student, Terrell Gray, and that the School District failed to take the proper steps to address the bullying and to protect the Plaintiff. The claim arises out of an incident which occurred on June 15, 2015.

By Decision and Order and Order dated December 28, 2016, this Court denied Plaintiff's

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application, brought by Notice of Motion dated September 6, 2016, which had sought leave to file a late Notice of Claim.

The Defendant now argues that the failure to file a Notice of Claim within 90 days of the accrual of the cause of action, requires that the action be dismissed. It is further argued that when a Plaintiff's motion for leave to file a late Notice of Claim is denied, the complaint should also be dismissed.

The Plaintiff argues in opposition that the Plaintiff filed a Notice of Appeal to the Court's prior Decision and Order, and if this Court dismisses the action in response to the instant action, it will prevent the Plaintiff from pursuing her action if the prior order is reversed. Therefore, it is requested that any order granting dismissal should indicate that the Plaintiff should not be prevented from reinstating her complaint if the prior Order is reversed. Finally, it is argued that any dismissal should be without prejudice, to allow the Plaintiff to take advantage of the savings provision of CPLR §205(a) which permit the commencement of a new action within six(6) months of the date of dismissal.

In reply, the Defendant argues that the prior Decision and Order...