Sherb v. Monticello Cent. Sch. Dist.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Garry, P.J.
• Citation: Sherb v. Monticello Cent. Sch. Dist., 163 A.D.3d 1130, 81 N.Y.S.3d 265 (N.Y. App. Div. 2018)
• Decision Date: 05 July 2018
• Docket Number: 525819
• Parties: Samantha SHERB, Appellant, v. MONTICELLO CENTRAL SCHOOL DISTRICT, Respondent.

163 A.D.3d 1130

81 N.Y.S.3d 265

Samantha SHERB, Appellant,

v.MONTICELLO CENTRAL SCHOOL DISTRICT, Respondent.

525819

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

Calendar Date: June 7, 2018

Decided and Entered: July 5, 2018

The Post Law Firm, PLLC, Suffern (Craig A. Post of counsel), for appellant.

Catania, Mahon, Milligram & Rider, PLLC, Newburgh (Mark L. Schuh of counsel), for respondent.

Before: Garry, P.J., McCarthy, Lynch, Devine and Mulvey, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from an order of the Supreme Court (Meddaugh, J.), entered January 5, 2017 in Sullivan County, which, among other things, denied plaintiff's motion to file a late notice of claim.

Plaintiff (born in June 1998) alleges that, for a period of over two years, she suffered bullying, intimidation and harassment as a student at one of defendant's schools. The problems escalated in January 2015, when an alleged perpetrator, who was also a student at the time, made physical threats against plaintiff on school property. School officials were promptly alerted, and defendant undertook certain supportive actions shortly thereafter. Another threatening incident allegedly occurred in June 2015. In October 2015, plaintiff's father moved for permission to file a late notice of claim on plaintiff's behalf. He subsequently withdrew the application. In January 2016, he moved again for the same relief, using the same proposed notice of claim. Defendant opposed the application and, in May 2016, Supreme Court (Schick, J.) denied it. Plaintiff turned 18 years of age in June 2016. In September 2016, she commenced this action seeking leave to file a late notice of claim and simultaneously filed a summons and complaint against defendant. Defendant opposed and cross-moved for sanctions, alleging that the application was frivolous. Supreme Court (Meddaugh, J.) denied the motion and the cross motion. Plaintiff appeals.

"An application for leave to file a late notice of claim is a matter committed to Supreme Court's discretion—provided such application is made prior to the expiration of the one year and 90–day statute of limitations" ( Babcock v. Walton Cent. Sch. Dist., 119 A.D.3d 1061, 1062, 989 N.Y.S.2d 172 [2014] ; see General Municipal Law §§ 50–e [5 ]; Mindy O. v. Binghamton City School Dist., 83 A.D.3d 1335, 1336, 921 N.Y.S.2d 696 [2011] ). Here, as plaintiff was a minor, the statute of limitations was tolled until her 18th birthday (see CPLR 208 ; Babcock v. Walton Cent. Sch. Dist., 119 A.D.3d at 1062–1063, 989 N.Y.S.2d 172 ; Matter of Conger v. Ogdensburg City School Dist., 87 A.D.3d 1253, 1254, 930 N.Y.S.2d 92 [2011] ). The toll was not altered by the earlier unsuccessful efforts of plaintiff's father to pursue a claim on her behalf, as to do so would "cut[ ] against the strong public policy of protecting those who are disabled because of their age" ( Henry v. City of New York, 94 N.Y.2d 275, 283, 702 N.Y.S.2d 580, 724 N.E.2d 372 [1999] ). As plaintiff's motion was brought within one year and 90 days of her 18th birthday, Supreme Court correctly found that it was timely.

Initially, we reject defendant's contention that plaintiff's motion should have been denied under the doctrine of res judicata based upon the denial of her father's earlier motion for leave to serve a late notice of claim. We note that, although both notices of claim alleged an ongoing pattern of bullying, harassment and intimidation, they were not identical; the father's notice mentioned only the January 2015 incident, while plaintiff's notice was premised upon the subsequent June 2015 event. In any case, Supreme Court (Schick, J.) denied the father's motion based upon its determination that jurisdiction over the defendants in that action was never obtained as a result of improper service of process. The court's ensuing comments on the merits of the father's application were dicta, which "is not entitled to preclusive effect" ( Pollicino v. Roemer & Featherstonhaugh, 277 A.D.2d 666, 668, 716 N.Y.S.2d 416 [2000] ; see Chiarini v. County of Ulster, 9 A.D.3d 769, 770, 780 N.Y.S.2d 669 [2004] ).

Turning to the merits of plaintiff's motion, General Municipal Law § 50–e (5)"requires the court to consider whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the accrual of the claim or within a reasonable time thereafter. Additionally, the statute requires the court to consider all other relevant facts and circumstances and provides a nonexhaustive list of factors that the court should weigh" ( Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 461, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016] [internal quotation marks, brackets and citations omitted]; see Education Law § 3813[2–a] ). As relevant here, the court is required to determine " ‘whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits’ " ( Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 461, 45 N.Y.S.3d 895, 68 N.E.3d 714, quoting General Municipal Law § 50–e [5 ]; see Education Law § 3813[2–a] ). Additionally, the court may consider, when pertinent, whether the delay in service was a product of the plaintiff's infancy status (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537–538, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006] ). While trial courts have broad discretion in determining the outcome of a movant's application to serve a late notice of claim, the determination must be supported by evidence in the record (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d at 465, 45 N.Y.S.3d 895, 68 N.E.3d 714 ).

Here, our review of the record reveals that defendant had actual knowledge of the alleged harassment, intimidation and bullying within a reasonable time, as evidenced by a February 2015 letter from plaintiff's counselor to defendant that detailed serious, harmful acts and continued harassment and bullying by the alleged perpetrator. The record further reveals that, in February 2015, the principal of plaintiff's school completed and signed a document headed "Bullying, Harassment or Intimidation Reporting Form" based upon the January 2015 incident. The form indicates that at least one meeting took place with plaintiff, school officials and others as a result of the incident, that plaintiff's parents were notified, that plaintiff had been bullied for two years and that the January 2015 incident had resulted in her "[o]ngoing" absence from school.¹ Although the form includes a finding that the January 2015 incident had not constituted bullying, intimidation or harassment, it also states that defendant responded by providing plaintiff with counseling, an escort and parking privileges, thus indicating its knowledge that she was in need of assistance. The record further includes an email sent by plaintiff's father to school officials on the same day as the June 2015 incident, stating that the alleged perpetrator had, among other things, driven his vehicle menacingly towards plaintiff and blown the horn at her in a school parking lot, and that a school employee who witnessed the incident had done nothing to intervene. The record thus demonstrates that defendant had actual knowledge of at least some of the underlying acts constituting the claim within a reasonable time frame (see Mindy O. v. Binghamton City School Dist., 83 A.D.3d at 1337, 921 N.Y.S.2d 696 ; Matter of Hinton v. New Paltz Cent. School Dist., 50 A.D.3d 1414, 1416, 857 N.Y.S.2d 753 [2008] ; compare Babcock v. Walton Cent. Sch. Dist., 119 A.D.3d at 1063–1064, 989 N.Y.S.2d 172 ).

As for the issue of prejudice, we first find that Supreme Court (Meddaugh, J.) "applied the incorrect legal standard by placing the burden solely on [plaintiff] to establish lack of substantial prejudice and by...