Opinion
434 CA 22-01752
08-11-2023
Stephen WARNER, Plaintiff-Respondent, v. PORT BYRON CENTRAL SCHOOL DISTRICT, Port Byron Central School District Board of Education, Defendants-Appellants, et al., Defendants.
FERRARA FIORENZA P.C., EAST SYRACUSE (CHARLES C. SPAGNOLI OF COUNSEL), FOR DEFENDANTS-APPELLANTS. WEITZ & LUXENBERG, P.C., NEW YORK CITY (JASON P. WEINSTEIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
FERRARA FIORENZA P.C., EAST SYRACUSE (CHARLES C. SPAGNOLI OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
WEITZ & LUXENBERG, P.C., NEW YORK CITY (JASON P. WEINSTEIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, CURRAN, BANNISTER, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this personal injury action pursuant to the Child Victims Act (see CPLR 214-g ) alleging that he was sexually abused from 1982 to 1984 by a teacher while he attended programs at a school located within defendant Port Byron Central School District. Plaintiff moved for leave to file and serve an amended complaint to, inter alia, amend the caption and add additional defendants. Port Byron Central School District and Port Byron Central School District Board of Education (collectively, defendants) cross-moved for summary judgment dismissing the complaint or proposed amended complaint. Supreme Court granted plaintiff's motion in part and denied defendants’ cross-motion. Defendants now appeal, as limited by their notice of appeal, from that part of the court's order granting in part plaintiff's motion for leave to file and serve an amended complaint. Defendants contend that the court erred in failing to dismiss plaintiff's eighth cause of action, which alleges that defendants failed to report allegations of sexual abuse under, inter alia, Social Services Law § 413. Notably, the eighth cause of action was contained in the original complaint and retained against defendants in the proposed amended complaint. CPLR 5515 (1) requires that a notice of appeal designate, inter alia, the judgment or order, or specific part of the judgment or order, from which the appeal is taken, and that requirement is jurisdictional (see City of Mount Vernon v. Mount Vernon Hous. Auth. , 235 A.D.2d 516, 517, 652 N.Y.S.2d 771 [2d Dept. 1997] ; see generally Bomer v. Dean , 195 A.D.3d 1518, 1521, 151 N.Y.S.3d 287 [4th Dept. 2021] ). Here, defendants limited their appeal to that part of the order granting in part plaintiff's motion to file and serve an amended complaint. Thus, defendants’ contention that the eighth cause of action should have been dismissed on the merits is not properly before this Court (see generally Vandergrand Props. Co., L.P. v. Warnock , 206 A.D.3d 597, 598, 172 N.Y.S.3d 14 [1st Dept. 2022] ; Weichert v. Delia , 1 A.D.3d 1058, 1058-1059, 767 N.Y.S.2d 723 [4th Dept. 2003], lv denied 1 N.Y.3d 509, 777 N.Y.S.2d 18, 808 N.E.2d 1277 [2004] ).