White v. AVERILL PARK SCHOOL

• Decision Date: 26 March 2003
• Citation: 195 Misc.2d 409,759 N.Y.S.2d 641
• Parties: MITCHUM F. WHITE, an Infant, by His Mother and Legal Guardian, ROBIN LABELLE, et al., Plaintiffs,<BR>v.<BR>AVERILL PARK CENTRAL SCHOOL DISTRICT et al., Defendants.
• Court: New York Supreme Court

195 Misc.2d 409
759 N.Y.S.2d 641

MITCHUM F. WHITE, an Infant, by His Mother and Legal Guardian, ROBIN LABELLE, et al., Plaintiffs,
v.
AVERILL PARK CENTRAL SCHOOL DISTRICT et al., Defendants.

March 26, 2003.

Whiteman Osterman & Hanna, Albany (Beth A. Bourassa of counsel), for Averill Park Central School District and others, defendants.

Maynard, O'Connor, Smith & Catalinotto, L.L.P., Albany (C. Adam Siegfried of counsel), for Louis Cioffi, defendant.

Larry P. Kivitz, P.C., East Greenbush, for plaintiffs.

[195 Misc.2d 410]

OPINION OF THE COURT

JAMES B. CANFIELD, J.

Defendants Kevin Earl, Thomas Kachadurian, Nancy Noonan, Dr. Michael J. Johnson, Josephine Moccia, and Louis Cioffi (individual defendants) move and cross-move pursuant to CPLR 3211 (a) (2) and (8) for an order dismissing the plaintiffs' actions against them based on plaintiffs' alleged failure to comply with the requirements of Education Law § 3813 and General Municipal Law § 50-e by failing to present a notice of claim naming the movants within 90 days of the September 7, 2001 student-on-student hazing incident on which the plaintiffs base their claim. Defendant Thomas Kachadurian (Kachadurian) also moves for dismissal based on plaintiffs' failure to serve him within 120 days after the action was filed.

Plaintiffs do not allege any of the individual defendants acted outside of their scope of employment so as to obviate the need to file a notice of claim or state a viable cause of action against any of the individual defendants in their individual capacity (Gorgone v Capozzi, 238 AD2d 308, 310 [1997]). Thus, the individual defendants' motions depend on whether a notice of claim directed to the "Board of Education of the Averill Park Central School District" meets the Education Law § 3813 and General Municipal Law § 50-e notice requirements for an action subsequently commenced against unnamed individual defendants employed by that entity. The court finds no merit to plaintiffs' argument that they may file a notice of claim naming a municipal entity and then commence an action against a roster of individual municipal employees (Matter of Rattner v Planning Commn. of Vil. of Pleasantville, 156 AD2d 521, 526 [1989]; Matter of Simmons v Board of Educ., Union Free School Dist. No. 17, Franklin Sq., 169 AD2d 727 [1991]).

In rejecting plaintiffs' argument, the court has considered the two cases cited by plaintiffs, Lieber v Village of Spring Val. (40 F Supp 2d 525 [1999]) and Delgado v Connolly (246 AD2d...