Opinion
2021–08173 Index No. 609126/21
05-17-2023
Paris PARPOUNAS, appellant, v. James J. OHAGAN, et al., respondents.
Sanford L. Pirotin, P.C., Westbury, NY (William S. Kanas of counsel), for appellant. Devitt Spellman Barrett, LLP, Smithtown, NY (Christi M. Kunzig of counsel), for respondents.
Sanford L. Pirotin, P.C., Westbury, NY (William S. Kanas of counsel), for appellant.
Devitt Spellman Barrett, LLP, Smithtown, NY (Christi M. Kunzig of counsel), for respondents.
COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated September 29, 2021. The order granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
In May 2021, the plaintiff commenced this action to recover damages for personal injuries against the defendant Three Village Central School District, incorrectly sued herein as Three Village School (hereinafter the school district), and the defendant James J. Ohagan, an alleged employee of the school district. The plaintiff alleged he was injured in a motor vehicle collision in September 2018, when a vehicle owned by the school district and operated by Ohagan collided with the vehicle owned and operated by the plaintiff. The complaint alleged, among other things, "[u]pon information and belief," that on the date of the collision Ohagan used and operated the school district's vehicle "in the scope of his employment with" the school district.
The defendants together moved pursuant to CPLR 3211(a) to dismiss the complaint. The defendants contended, inter alia, that dismissal was warranted pursuant to CPLR 3211(a) due to the plaintiff's failure to serve a notice of claim prior to commencement of the action. The defendants further contended, among other things, that the action was untimely and should also be dismissed on that ground. The plaintiff opposed the motion.
In an order dated September 29, 2021, the Supreme Court granted the defendants’ motion, on the ground that the plaintiff failed to comply with a condition precedent to commencing the action by failing to serve a notice of claim upon the school district, and on the separate ground that the plaintiff commenced the action after the statute of limitations had expired. The plaintiff appeals.
"In order to maintain a tort action against a school district, a claimant must serve a notice of claim within 90 days of the alleged injury" ( Mosheyev v. New York City Dept. of Educ., 144 A.D.3d 645, 645, 39 N.Y.S.3d 832 ; see Education Law § 3813[2] ; General Municipal Law § 50–i[1] ; Robinson v. Board of Educ. of City Sch. Dist. of City of N.Y., 104 A.D.3d 666, 666, 962 N.Y.S.2d 279 ). Satisfaction of the notice of claim requirement "is a condition precedent to bringing an action against a school district" ( Parochial Bus Sys., Inc . v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 547, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ; see Matter of C.N. v. City of New York, 208 A.D.3d 784, 785, 174 N.Y.S.3d 97 ). Failure to comply with a statutory notice of claim requirement is a ground for dismissal pursuant to CPLR 3211(a)(7) for failure to state a cause of action (see Ahmad v. New York City Dept. of Educ., 177 A.D.3d 834, 836, 113 N.Y.S.3d 162 ; Mosheyev v. New York City Dept. of Educ., 144 A.D.3d at 646, 39 N.Y.S.3d 832 ).
The service of a notice of claim upon a school district is also a condition precedent to the commencement of the action against a school district employee, if the employee's complained-of conduct occurred during the discharge of the employee's duties within the scope of her or his employment (see Education Law § 3813[2] ; Wagman v. Hooper, 138 A.D.3d 826, 827, 29 N.Y.S.3d 519 ; DeRise v. Kreinik, 10 A.D.3d 381, 381–382, 780 N.Y.S.2d 773 ; see also General Municipal Law § 50–e[1][b] ; Education Law § 3023 ). An employee acts in the scope of his or her employment when "doing something in furtherance of the duties [the employee] owes to [the] employer and where the employer is, or could be, exercising some control ... over the employee's activities" ( Matter of Sagal–Cotler v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 20 N.Y.3d 671, 676, 965 N.Y.S.2d 767, 988 N.E.2d 502 [internal quotation marks omitted]; see Lundberg v. State of New York, 25 N.Y.2d 467, 470, 306 N.Y.S.2d 947, 255 N.E.2d 177 ).
Here, in light of the plaintiff's undisputed failure to serve a notice of claim upon the school district prior to commencement of the instant action, the Supreme Court properly granted the branch of the defendants’ motion pursuant to CPLR 3211(a) which was to dismiss the complaint insofar as asserted against the school district (see Mosheyev v. New York City Dept. of Educ., 144 A.D.3d at 646, 39 N.Y.S.3d 832 ; see also Cassidy v. Riverhead Cent. Sch. Dist., 128 A.D.3d 996, 997, 11 N.Y.S.3d 102 ).
The Supreme Court also properly granted that branch of the defendants’ motion which was to dismiss the complaint insofar as asserted against Ohagan, on the ground that he was acting in the scope of his employment at the time of the subject accident and therefore the plaintiff was obligated to serve a notice of claim upon the school district prior to commencing an action against Ohagan (see Wagman v. Hooper, 138 A.D.3d at 827, 29 N.Y.S.3d 519 ). Contrary to the plaintiff's contention, the Supreme Court did not err in considering an affidavit submitted by Ohagan in support of the defendants’ motion. Affidavits may be considered on a motion pursuant to CPLR 3211 to dismiss a complaint (see Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970 ; Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 ). Where, as here, evidentiary material is considered on a CPLR 3211(a) motion, "the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one" ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ). "[U]nless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate" ( id. at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; Bianco v. Law Offs. of Yuri Prakhin, 189 A.D.3d 1326, 1328–1329, 138 N.Y.S.3d 576 [internal quotation marks omitted]). Here, Ohagan's affidavit testimony regarding his activities at the time of the subject motor vehicle accident, coupled with the plaintiff's own factual allegations (see generally McCormack v. Port Washington Union Free School Dist., 214 A.D.2d 546, 546–547, 625 N.Y.S.2d 57 ), conclusively demonstrated that no significant dispute exists regarding whether Ohagan was acting in the scope of his employment for the school district at the time of the accident, and Ohagan has "establish[ed] conclusively that plaintiff has no cause of action" ( Kaufman v. International Bus. Machs. Corp., 97 A.D.2d 925, 926–927, 470 N.Y.S.2d 720, affd 61 N.Y.2d 930, 474 N.Y.S.2d 721, 463 N.E.2d 37 [internal quotation marks omitted]; see Krakovski v. Stavros Assoc., LLC, 173 A.D.3d 1146, 1149, 103 N.Y.S.3d 553 ), due to the plaintiff's failure to serve a notice of claim before commencing the instant action (see Wagman v. Hooper, 138 A.D.3d at 827, 29 N.Y.S.3d 519 ; see also J & E Indus. of Ossining, Inc. v. Peekskill Hous. Auth., 128 A.D.3d 638, 640, 8 N.Y.S.3d 394 ; cf. International Shared Servs., Inc. v. County of Nassau, 222 A.D.2d 407, 634 N.Y.S.2d 722 ).
Furthermore, contrary to the plaintiff's contention, the defendants’ motion was not premature, as it did not appear from the complaint or the affidavits that facts essential to justify opposition to the motion existed but could not be stated by the plaintiff (see CPLR 3211[d] ; Copp v. Ramirez, 62 A.D.3d 23, 31–32, 874 N.Y.S.2d 52 ; see also Abruzzi v. Bond Realty, Inc., 201 A.D.3d 680, 684, 161 N.Y.S.3d 280 ).
The Supreme Court also properly determined that the plaintiff's causes of action were time-barred. Any tort action against a school district must be commenced "within one year and ninety days after the happening of the event upon which the claim is based" ( General Municipal Law § 50–i[1] ; see Education Law § 3813[2] ; Yang v. Oceanside Union Free School Dist., 90 A.D.3d 649, 649, 933 N.Y.S.2d 905 ). The same statute of limitations applies to actions against a school district employee acting in the scope of his or her employment (see Migliano v. Romano, 172 A.D.3d 1198, 1199, 98 N.Y.S.3d 872 ; Griffin v. Perrotti, 121 A.D.3d 1041, 1042, 996 N.Y.S.2d 66 ). Here, it is undisputed that the plaintiff's action was commenced more than one year and ninety days after the subject motor vehicle accident.
The plaintiff's remaining contentions are without merit.
DUFFY, J.P., CHAMBERS, CHRISTOPHER and ZAYAS, JJ., concur.