Opinion
1531/2015
08-04-2016
Palmore P. Clarke-St. John and Lawrence St. John, Plaintiffs, v. City of New York, Department of Education of City of New York and Valena Welch-Woodley and Wanda Ruff, Defendants.
For Plaintiff: John J. Appell, Esq. Appell & Parrinelli 3 West 35th Street, 6th Floor New York, New York 10001 For Defendants: Zachary Carter, Esq. By: Eric Murrell, Esq.Corporation Counsel for the City of New York 100 Church Street, Room 2-140 New York, New York 10007-2601
For Plaintiff:
John J. Appell, Esq.
Appell & Parrinelli
3 West 35th Street, 6th Floor
New York, New York 10001 For Defendants:
Zachary Carter, Esq.
By: Eric Murrell, Esq.Corporation Counsel for the City of New York
100 Church Street, Room 2-140
New York, New York 10007-2601 Lara J. Genovesi, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion, Affirmation and Memorandum of Law Annexed 1A, 1B Opposing Affirmation and Memorandum of Law 2 Reply Memorandum of Law 3 Other Papers: Supplemental Affirmations 4, 5
Introduction
Defendants, the Department of Education of the City of New York, Valena Welch-Woodley and Wanda Ruff, move by notice of motion, sequence number three, for an order (1) pursuant to CPLR § 2221(d) granting reargument and (2) pursuant to CPLR §§ 3211(a)(5) and (7) dismissing the complaint on the grounds that (a) plaintiffs' claims are time barred because plaintiffs have not complied with the requisite notice of claim requirements to assert a claim against the Department of Education (DOE); and (b) the complaint fails to state a cause of action; and (3) for such other and further relief as this Court deems just and proper. Plaintiffs oppose this application. Plaintiffs discontinued their action against the City of New York.
Background
Procedural History
Defendants initially moved, motion sequence one, to dismiss the complaint because there is another action pending; plaintiffs' claims are time barred; plaintiffs' failed to comply with the notice of claim requirements; plaintiffs' complaint fails to state a cause of action; and lack of personal jurisdiction over the individual defendant Wanda Ruff. Plaintiffs cross moved, motion sequence two, for denial of defendants' motion for summary judgment and granting plaintiff a default judgment against defendants Valena Welch-Woodley and Wanda Ruff.
The defendants' motion was to dismiss the complaint, not for summary judgment as plaintiffs' cross motion states. Accordingly, this Court will apply the standard appropriate for a motion to dismiss (see Hutchison v. Kings County Hosp. Center, 139 AD3d 673, 32 N.Y.S.3d 210 [2 Dept., 2016] ["The Supreme Court also erred in treating the motion to dismiss pursuant to, inter alia, CPLR 3211(a)(7) as a motion for summary judgment, as no notice was provided to the parties and the parties did not make it unequivocally clear that they were laying bare their proof and deliberately charting a summary judgment course" [internal citations and quotations omitted]).
On October 2, 2015, at oral argument, the parties stipulated by short form order that plaintiffs withdrew "the causes of action for defamation (libel and slander), discrimination, retaliation, negligent investigation, malicious civil prosecution, tortious interference with contract and breach of contract. Lack of personal jurisdiction over the individual defendant Ruff is also withdrawn."
After oral argument, by short form order dated October 2, 2015, this Court granted plaintiffs' application and denied the cross motion. Defendants now seek reargument of that short form order. Reargument was first heard on March 11, 2016. On June 20, 2016, upon further oral argument pursuant to this Court's sua sponte order, the parties stipulated that "the plaintiff's two remaining viable causes of action are plaintiff's first and fourth. Plaintiff withdraws the second and third causes of action. Plaintiff discontinues the case against the City of New York as they are not a proper party to this action." This Court sought further clarification from counsel by conference call as to which claims remained. Plaintiffs' counsel submitted an affirmation on notice, dated July 20, 2016, stating that plaintiffs' remaining causes of action are "intentional tort and a scheme of fraud."
This Court sought multiple clarifications from plaintiffs' counsel regarding plaintiffs' remaining causes of action. It was unclear to this Court whether plaintiff was pleading "intentional tort" or prima facie tort. Plaintiffs' complaint stated under its first cause of action an action for "intentional tort" (see Notice of Motion to Reargue, Exhibit C, Verified Complaint, ¶ 32). In contrast, in plaintiffs' affirmation in opposition and memorandum of law to the instant motion plaintiff set forth a cause of action for prima facie tort (see Affirmation in Opposition, Section IV). However, plaintiffs' supplemental affirmation submitted on July 20, 2016, states that plaintiffs' remaining causes of action are "intentional tort and a scheme of fraud." Whether plaintiffs' complaint established a cause of action for "intentional tort" or prima facie tort has no bearing on the accrual of the cause of action inasmuch as they are both tort claims.
The Facts
The facts of this case are not in dispute. Plaintiff Clarke-St. John was a tenured special education teacher employed by the DOE at I.S. 218. Defendant Valena Welch-Woodley (Welch-Woodley) was the principal of the school and Wanda Ruff (Ruff) was a paraprofessional at the school. Plaintiff was charged with misconduct during the 2011-2012 and 2012-2013 school years. The charges included verbal abuse, neglect of duty and conduct unbecoming of her profession. Plaintiff was also charged with intimidation, harassment and tampering with a witness.
It was alleged that plaintiff referred to her students as "animals" and "retarded." Principal Welch-Wooley and the Office of Special Investigation conducted an investigation. Thereafter, plaintiff was charged with having "engaged in misconduct, verbal abuse, neglect of duty, and conduct unbecoming her profession" during the 2011-2012 school year. Plaintiff was further charged with having "engaged in misconduct, insubordination, tampering with a witness, intimidation, harassment, verbal abuse, neglect of duty, and conduct unbecoming her profession" during the 2011-2012 and 2012-2013 school years (see Notice of Motion to Reargue, Exhibit C, Impartial Hearing Officer Douglas S. Abel Opinion and Award, July 8, 2013 at 20-21).
Plaintiff participated in the compulsory arbitration hearing in accordance with Education Law § 3020-a entitled "disciplinary procedures and penalties." Pursuant to Education Law § 3020, Impartial Hearing Officer Douglas S. Abel rendered an opinion and award on July 8, 2013 (see id. at 19-51). In the lengthy opinion, the hearing officer indicated that plaintiff referred to her students as gorillas, monkeys and retarded, noting that she was not remorseful for her actions. The hearing officer held that "there is just cause for disciplinary action; the penalty to be imposed is termination" (id. at 51).
On July 25, 2013, only 17 days after the hearing officer's determination, the one student that testified at the § 3020-a hearing recanted her testimony by affidavit. The student's affidavit indicated that Welch-Woodley and Ruff, the principal and the paraprofessional, made the child write the statement against plaintiff and that the child was not allowed go home until she wrote said statement. The child further indicated that she wrote what Welch-Woodley and Ruff told her to write. The child's mother also provided a statement indicating that she did not permit her child to testify and the child was removed from school grounds for the purposes of giving testimony at the § 3020-a hearing without her consent and knowledge. Moreover, when the mother called the school looking for her child she was advised that the child was in the bathroom, but in actuality, the child was removed from school grounds, without the mother's permission, and taken to testify at the § 3020-a hearing.
Immediately thereafter, on July 26, 2013, plaintiff filed an Article 75 proceeding in the New York State Supreme Court, New York County which challenged the hearing officer's decision. By a decision dated September 18, 2014, the Hon. Milton A. Tingling denied the DOE's cross motion to dismiss the petition, vacated the arbitration award and remanded the matter for arbitration before a new hearing officer. Justice Tingling found that "[a]fter examining this evidence, including key witness Jane Doe's recantation, the Court finds Petitioner has presented sufficient evidence demonstrating the arbitration award was procured through fraud and misconduct, violating CPLR § 7511(b)(1)(i)" (Notice of Motion to Reargue, Exhibit C, J. Tingling Decision, September 18, 2014, at 82). Justice Tingling further stated that "given the totality of the circumstances, the Court finds the penalty of dismissal is so disproportionate to Petitioner's alleged conduct, and has such an impact on her livelihood, that it shocks one's sense of fairness and constitutes an abuse of discretion as a matter of law' (id. at 85).
Counsel indicated to this Court that Justice Tingling's decision is being appealed and that the appeal has been perfected. Despite Justice Tingling's September 2015 decision to vacate the hearing officer's determination and to remand the case for a new hearing before a different hearing officer, a hearing has not been scheduled by the DOE. Furthermore, counsel represented that plaintiff has taken no action to compel the new hearing. Counsel for the City represents that plaintiff has not been reinstated, is classified as "terminated" and is not currently on the DOE payroll (see Affirmation of Assistant Corporation Counsel Eric Murrell, July 25, 2016, ¶¶ 3-4).
Plaintiffs filed their notice of claim on November 18, 2014, against defendants the City of New York, DOE and Welch-Woodley c/o DOE (see Notice of Motion to Reargue, Exhibit E, at 21). Subsequently, plaintiffs filed their summons and verified complaint on February 9, 2015 (see Notice of Motion to Reargue, Exhibit A).
Discussion
Motion to Reargue
CPLR § 2221(d) states:
A motion for leave to reargue:
1. shall be identified specifically as such;
2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and
3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.
"A motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion. While the determination to grant leave to reargue a motion lies within the sound discretion of the court, a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" (Rodriguez v. Gutierrez, 138 AD3d 96, 431 N.Y.S.3d 97 [2 Dept., 2016] [internal quotation marks and citations omitted]).
Defendants move in a timely manner, pursuant to CPLR § 2221, for leave to reargue the motion to dismiss and an order modifying this Court's order which denied dismissal of plaintiffs' complaint. Defendants' instant motion to reargue is based upon "matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion" (CPLR § 2221[d][2]). After extensive oral argument by counsel and a review of all papers presented to this Court with respect to the instant motion, this Court grants defendants' motion to reargue and finds that this Court overlooked matters of fact or law in entering its October 2, 2015, short form order. The prior denial of defendants' motion to dismiss is modified as stated below.
Motion to Dismiss
CPLR § 3211 states, in part, that:
(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:(CPLR § 3211[5], [7]).
. . .
5. the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds; or
. . . .
7. the pleading fails to state a cause of action
Defendants herein move to dismiss plaintiffs' complaint as time barred and for failure to state a cause of action. Pursuant to plaintiffs' counsel's affirmation dated July 20, 2016, plaintiffs' remaining causes of action are "intentional tort and a scheme of fraud." "On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired . . . The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period" (Cannariato v. Cannariato, 136 AD3d 627, 24 N.Y.S.3d 214 [2 Dept., 2016], quoting Coleman v. Wells Fargo & Co., 125 AD3d 716, supra).
"In deciding whether a particular claim is time barred, the court must examine at least four questions: (1) When did the plaintiff's cause of action accrue? (2) What prescriptive period applies? (3) When did the plaintiff interpose his claim? (4) Was the running of the prescriptive period suspended or tolled for any reason?" (Roldan v. Allstate Ins. Co., 149 AD2d 20, 544 N.Y.S.2d 359 [2 Dept., 1989] [internal citations omitted]). This Court examined each question, in turn, as discussed below.
(1) When did plaintiffs' claims accrue?
As an initial mater, this Court must determine the accrual dates for plaintiffs remaining claims. "The time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed." (CPLR § 203(a), Accrual of cause of action and interposition of claim).
"Generally, tort claims accrue upon an injury being sustained" (City Store Gates Mfg. Corp. v. Empire Rolling Steel Gates Corp., 113 AD3d 718, 979 N.Y.S.2d 606 [2 Dept., 2014]; see Kronos, Inc. v. AVX Corp., 81 NY2d 90, 612 N.E.2d 289 [1993] ["plaintiff's cause of action is one sounding in tort, and, as a general proposition, a tort cause of action cannot accrue until an injury is sustained"]). To the extent that plaintiff contends that she has an "intentional tort" claim, the general accrual for a tort claim is upon an injury being sustained. Plaintiff sustained an injury when she was terminated from her employment on July 8, 2013. Therefore, plaintiffs' "intentional tort" claim accrued on that date.
With respect to plaintiffs' fraud claim, "[a] cause of action based upon fraud accrues, for statute of limitations purposes, at the time the plaintiff possesses knowledge of facts from which the fraud could have been discovered with reasonable diligence'" (Coleman v. Wells Fargo & Co., 125 AD3d 716, 4 N.Y.S.3d 93 [2 Dept., 2015], quoting Town of Poughkeepsie v. Espie, 41 AD3d 701, 840 N.Y.S.2d 600 [2 Dept., 2007]). Defendants contend that plaintiffs' cause of action for fraud accrued at the time plaintiff discovered the fraud. In opposition, plaintiff contends that her cause of action for fraud did not accrue until Justice Tingling's decision in the Article 75 proceeding on September 18, 2014.
This Court finds that plaintiffs' cause of action for fraud accrued when the student recanted her testimony by affidavit on July 25, 2013. Although plaintiffs rely on Kronos, Inc. v. AVX Corp. (81 NY2d 90, supra), for the proposition that "the statute of limitations does not run until there is a legal right to relief" and "accrual occurs when the claim becomes enforceable" (Affirmation in Opposition, ¶ 41), the Court of Appeals further stated that "accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint" (id.).
In this case, plaintiffs' claim became enforceable and all the elements of fraud could truthfully be alleged in a complaint when the student recanted her testimony. At that time, plaintiff was able to truthfully allege all the elements of fraud as evinced in plaintiff's Article 75 petition filed on July 26, 2013. Plaintiff's Article 75 petition, which sought to vacate the disciplinary opinion, alleged the elements of fraud as well as annexed the student's affidavit in support of the allegations. Further, a cause of action based on fraud, specifically, "accrues, for statute of limitations purposes, at the time the plaintiff possesses knowledge of facts from which the fraud could have been discovered with reasonable diligence" (Coleman v. Wells Fargo & Co., 125 AD3d 716, supra, quoting Town of Poughkeepsie v. Espie, 41 AD3d 701, supra). Accordingly, plaintiffs' cause of action for fraud accrued when plaintiff became aware of the fraud on July 25, 2013.
(2) What prescriptive period applies?
This Court must next determine what statute of limitations period applies to plaintiffs' remaining claims. Defendants move to dismiss this action contending that the action was commenced too late to comply with the Education Law. Education Law § 3813 governs claims against a governing body of a school district. The Education Law states, in part, that:
2 . . . . no action or special proceeding founded upon tort shall be prosecuted or maintained against any of the parties named in this section or against any teacher or member of the supervisory or administrative staff or employee where the alleged tort was committed by such teacher or member or employee acting in the discharge of his duties within the scope of his employment and/or under the direction of the board of education, trustee or trustees, or governing body of the school unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law. Every such action shall be commenced pursuant to the provisions of section fifty-i of the general municipal law.
This Court notes that plaintiffs' alleged in their verified complaint that defendants Welch-Woodley and Ruff were acting within the scope of their employment (see Notice of Motion to Reargue, Exhibit A, Verified Complaint, ¶¶ 12-13. Therefore, the party in interest to this action is the DOE, who employed them, and the DOE may be liable for their conduct, as such, GML § 50-i would apply to claims against defendants Welch-Woodley and Ruff (see generally, Wagman v. Hooper, 138 AD3d 826, 29 N.Y.S.3d 519 [2 Dept., 2016], citing Ruggiero v. Phillips, 292 AD2d 41, 739 N.Y.S.2d 797 [3 Dept., 2002]["If Phillips was acting in the performance of his duties and within the scope of his employment when he committed the alleged tort, the Village must indemnify him for damages arising therefrom. If the Village must indemnify Phillips, then the Village is the real party in interest and General Municipal Law § 50 i(1)(c) applies to the libel cause of action against Phillips."] [internal citations omitted]).
Therefore, this Court must address the notice of claim requirements of GML 50-e and 50-i, as well as the applicable statutes of limitations for plaintiffs' remaining claims.
Notice of Claim
"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" (Quinn v. Wallkill Cent. School Dist. Bd. of Educ., 131 AD3d 1063, 16 N.Y.S.3d 277 [2 Dept., 2015], citing Education Law § 3813[2]; see GML § 50-e ; see also Fox v. New York City Dep't of Educ., 124 AD3d 887, 2 N.Y.S.3d 210 [2 Dept., 2015]). Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to the commencement of a tort action against the City of New York or a public corporation (see Cassidy v. Riverhead Cent. Sch. Dist., 128 AD3d 996, 11 N.Y.S.3d 102 [2 Dept., 2015]; see also Chtchannikova v. City of New York, 138 AD3d 908, 30 N.Y.S.3d 233 [2 Dept., 2016]; GML § 50-e).
In the instant matter, plaintiff served her notice of claim on November 18, 2014. A cause of action for "intentional tort" would have accrued on July 8, 2013, the date of the injury. Therefore, the time to file a notice of claim for a possible "intentional tort" claim expired on October 7, 2013. Similarly, plaintiffs' cause of action for fraud accrued on July 25, 2013, the date the alleged fraud was discovered. The time to file a notice of claim based on the cause of action for fraud expired on October 23, 2013.
This Court notes that the 90-day period in which to file a notice of claim against the City expired on October 6, 2013. "When any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day" (Gen. Constr. Law § 25-a [1]). Since October 6, 2013 was a Sunday, the time to file the notice of claim was extended to the next succeeding business day, October 7, 2013.
Plaintiffs' notice of claim served on November 18, 2014, was more than one year after the expiration of the statutory time to file a notice of claim for either cause of action. Plaintiffs commenced the instant action by filing a summons and verified complaint on February 9, 2015. Plaintiffs did not move for leave to deem that notice of claim as timely served nunc pro tunc. No tolling provisions apply to the 90-day notice of claim period as it is a condition precedent to the commencement of an action and not a statute of limitations (see Cohen v. Pearl River Union Free Sch. Dist., 51 NY2d 256, 414 N.E.2d 639 [1980] ["[W]hen an act such as service of notice of claim must be performed within a specific time as a means of complying with a statutory condition precedent, the time period in question operates as a limitation upon the right to recover rather than as a limitation only upon the remedy, and the tolls and extensions delineated in the CPLR generally may not be invoked to alter the statutorily designated deadline for the performance of the act"]). Accordingly, plaintiffs failed to serve a notice of claim within the proscribed 90-day period, thereby failing to satisfy the required condition precedent to the commencement of this action.
Statute of Limitations
The statute of limitations for a tort claim against a public authority is one year and 90 days (see Education Law § 3813[2] and GML § 50-i and CPLR § 217-a). The Appellate Division, Second Department has held that "[c]auses of action to recover damages for intentional torts committed by municipal defendants . . . must be commenced within the one-year and 90-day period contained in General Municipal Law § 50-i, which takes precedence over the one-year period of limitations provided for in CPLR 215'" (Wright v City of Newburgh, 259 AD2d 485, 486, quoting Estate of Adkins v County of Nassau, 141 AD2d 603)." (Bosone v. County of Suffolk, 274 AD2d 532, 712 N.Y.S.2d 128 [2 Dept., 2000]). "Fraud, of course, is an intentional tort" (Pasternack v. Laboratory Corp. of America Holdings, —- N.E.3d —-, 2016 NY Slip Op. 05179 [2016]). Therefore, any remaining causes of action sounding in fraud or "intentional tort" must have been commenced within the one year and 90-day statute of limitations.
CPLR § 217-a, entitled "Actions to be commenced within one year and ninety days," states, in relevant part, that "[n]otwithstanding any other provision of law to the contrary every action for damages or ... for personal injuries or wrongful death, against any political subdivision of the state must be commenced in compliance with all the requirements of section fifty-e and subdivision one of section fifty-i of the general municipal law."
(3) When did plaintiffs interpose their claim?
On a motion to dismiss a complaint, on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired (see Cannariato v. Cannariato, 136 AD3d 627, supra). In the instant case, defendants established that the time in which to commence plaintiffs' remaining causes of action has expired. As stated above, plaintiffs' cause of action for "intentional tort" accrued on July 8, 2013; fraud accrued on July 25, 2013. In this case, it is undisputed that the prescribed period for both remaining causes of action is one year and 90 days. Therefore, the statute of limitations for an "intentional tort" expired on October 6, 2014, one year and 90 days from plaintiff's termination. The statute of limitations for fraud expired on October 23, 2014, one year and 90 days from the date the fraud was discovered. It is undisputed that plaintiffs commenced this action on February 9, 2015, which is well over three months beyond the statute of limitations for either cause of action. Accordingly, plaintiffs failed to timely commence this action.
(4) Was the running of the prescriptive period suspended or tolled?
Where defendants meet their prima facie burden, the burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the plaintiff commenced the action within the applicable limitations period (see Cannariato v. Cannariato, 136 AD3d 627, supra). In the instant case, plaintiffs failed to raise a question of fact with respect to whether the statute of limitations was suspended or tolled.
Plaintiffs first contend that the statute of limitations for the fraud cause of action was tolled until Justice Tingling reached a decision in the Article 75 proceeding. Plaintiff states that her claim of fraud was extinguished by the disciplinary opinion and was therefore, not enforceable until Justice Tingling's decision vacated the disciplinary opinion. In support of this contention plaintiffs cite Roldan v. Allstate Ins. Co. (149 AD2d 20, 544 N.Y.S.2d 359 [2 Dept., 1989]; lv. dismissed).
In Roldan, the plaintiff set forth similar arguments. This case involved an underlying automobile accident (Roland v. Thorpe) wherein Thorpe's automobile insurance carrier, Allstate, did not defend and indemnify Thorpe. A default judgment was granted against Thorpe. Subsequently, plaintiff commenced an action against Allstate, as assignee of Allstate's insured (trial court Roldan v. Allstate Ins. Co.). Allstate moved to dismiss the complaint alleging that the statute of limitations expired prior to plaintiff interposing its complaint. Plaintiff's opposed the motion stating, in part, that in the underlying personal injury action (Roland v. Thorpe) three years after the default judgment, Allstate moved to vacate the default judgment on the basis that the Supreme Court lacked personal jurisdiction. The Supreme Court in Roland v. Thorpe granted the motion, vacated the default judgment and dismissed the underlying personal injury complaint. The Appellate Division reversed and the motion for leave to appeal was dismissed by the Court of Appeals.
Roldan argued that the causes of action did not accrue until the Court of Appeals denied leave. The Appellate Division, Second Department held that Roldan's causes of action against Allstate based on bad faith and indemnification accrued when the default judgment was entered (id.). Further, the statute of limitations was tolled during the period from which the Supreme Court vacated the default judgment and the Appellate Division reversed that order to reinstate the judgment. The court held that by vacating the default, the insureds causes of action against Allstate were extinguished because the default judgment was a predicate to plaintiff's claims for bad faith and indemnification (see id.).
Here, plaintiffs' reliance on Roldan is misplaced. In the instant matter, plaintiffs' fraud cause of action accrued when plaintiff learned of the fraud on July 25, 2013. In contrast to Roldan, plaintiffs' cause of action for fraud was not extinguished by the disciplinary opinion, which was rendered on July 8, 2013. Plaintiffs were unable to allege a claim of fraud until they learned of the affidavit recanting the student's testimony, which was after the disciplinary decision was rendered. Therefore, the disciplinary opinion could not have extinguished plaintiffs' cause of action for fraud prior to the fraud's discovery and accrual. Further, Justice Tingling's decision was not necessary to plead fraud, nor did it reinstate plaintiffs' fraud claim, which was never extinguished. Plaintiff was not precluded from pleading the necessary elements of her case. Rather, the affidavit recanting the student's testimony was the predicate for plaintiffs' fraud claims. Accordingly, the statute of limitations for plaintiffs' fraud cause of action was not tolled during the period between the disciplinary opinion and Justice Tingling's decision.
Plaintiffs further contend that the statute of limitations was tolled, citing Stewart v. Citimortgage, Inc. (122 AD3d 721, 996 N.Y.S.2d 638 [2 Dept., 2014]), for the proposition that:
[g]enerally, a party who has lost a case as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action for damages against the party who adduced the false evidence. The plaintiff's remedy lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the judgment due to its fraudulent procurement, not a second plenary action collaterally attacking the judgment in the original action(id. [internal quotation marks and citations omitted]).
In the instant matter, plaintiff lost a compulsory arbitration hearing as a result the of alleged fraud and false testimony. Upon learning of this fraud and false testimony, plaintiff filed an Article 75 proceeding. Although the outcome of plaintiff's disciplinary hearing was not in her favor, plaintiff did not lose a "case." As the Appellate Division, Second Department in Stewart held, "plaintiff's remedy would lie exclusively in the lawsuit.'" The disciplinary determination was not a lawsuit but a compulsory arbitration hearing. Plaintiff was not barred from simultaneously commencing an action for fraud. The disciplinary hearing was not a judgment of a court but, rather, the opinion of an arbitrator. In order for a determination by an arbitrator to be entered as a judgment, an application must be made to the court to confirm the arbitrator's award (see CPLR § 7510, Confirmation of award). Further, as the disciplinary opinion was not a judgment of the court, plaintiff's remedy did not lie in moving pursuant to CPLR § 5015, entitled "Relief from judgment or order," to have the judgment vacated. Therefore, the Appellate Division's holding in Stewart, is not applicable in the instant matter.
Accordingly, plaintiffs failed to raise an issue of fact with respect to timely commencement of this action or whether the applicable statute of limitations was suspended or tolled during the prescriptive period.
Derivative Cause of Action
"[A] spouse's cause of action to recover for loss of services or consortium does not exist independent of the injured spouse's right to maintain an action for injuries sustained (see Liff v. Schildkrout, 49 NY2d 622, 632, 427 N.Y.S.2d 746, 404 N.E.2d 1288). Consequently, the derivative cause of action cannot survive the dismissal of the main claims for damages (see e. g., Cruz v. City of New York, 302 AD2d 553, 554, 755 N.Y.S.2d 416; Belanoff v. Grayson, 98 AD2d 353, 358, 471 N.Y.S.2d 91)."(Klein v. Metro. Child Servs., Inc., 100 AD3d 708, 954 N.Y.S.2d 559 [2 Dept., 2012]). Plaintiff Lawrence St. John's derivative cause of action for loss of services is denied inasmuch as his wife's claims have been extinguished.
Conclusion
Defendants' motion for reargument is granted. Defendants' motion to dismiss the complaint pursuant to CPLR § 3211(a)(5) for failure to timely serve a notice of claim and because the claim is time-barred by the statute of limitations is granted. In opposition, plaintiffs' failed to raise a question of fact to preclude the granting of defendant's motion. Any applications not specifically addressed herein are denied.
The foregoing constitutes the decision and order of this Court. August 4, 2016
Hon. Lara J. Genovesi
J.S.C.