Opinion
14628/11
06-03-2015
Keith Lane, Jr. AND KEITH LANE, SR., Plaintiffs, v. The City of New York, THE NEW YORK CITY BOARD OF EDUCATION, THE NEW YORK CITY DEPARTMENT OF EDUCATION, QUINTIN CEDENO, BONNIE, BROWN, DEBBIE EDMONDS, LAKEISHA JOHNSON, VALERIE TULLOCH-BLAIR, MITCHELL ALMONTE, REINA BLACK, DEBORA MAJOR, MONICA VENEZIANO a/k/a MONACO, ELIZABETH DEFRANCISCO, PHYLLIS CARRE, DEAN SALAMANCA, MARCO MILIACCIO, QUADRI SCOTT, and JOHN DOE and JANE DOE (said names being fictitious) as Parents and Natural Guardian of QUADRI SCOTT, RYAN PRASHAD, JIMMY HALAS, JOSE SINCLAIRE DOMINGUEZ, ALFONSO VALENTINO, TIMOTHY DECOURSEY, ELVIN VALETTE, EMILIO HEREDNIA, GARY FOGELMAN, JOHN GALMI, MARK HUERTAS, JOHN GENTILE, PASQUALE CARELLI, NICHOLAS LOPICCOLA, JORHAM a/k/a "BRIAN" GARCIA, AARON MORALES, EMANUEL TORRES, and ANTHONY ROMANO, Defendants.
Laurel A. Wedinger, Esq.(Attorney for Plaintiff)265 Joline Avenue, Suite AStaten Island, NY 10307 Pamela Jean Cullington, Esq.Asst, Corporation Counsel(Attorney for Defendant)89-17 Sutphin BoulevardJamaica, NY 11435
Laurel A. Wedinger, Esq.(Attorney for Plaintiff)265 Joline Avenue, Suite AStaten Island, NY 10307
Pamela Jean Cullington, Esq.Asst, Corporation Counsel(Attorney for Defendant)89-17 Sutphin BoulevardJamaica, NY 11435
Phyllis Orlikoff Flug, J.
Defendants, the City of New York, the New York City Board of Education, the New York City Deparmtent of Education, Quintin Cedeno, Bonnie Brown, Debbie Edmonds, Lakeisha Gordon s/h/a Lakeisha Johnson, Valerie Tulloch-Blair, Mitchell Almonte, Reina Black, Deborah L. Major s/h/a Debora Major, Monica Monaco s/h/a/ Monica Veneziano a/k/a Monaco, Elizabeth Defrancisco, Phyllis Carre, Jason Salamanca s/h/a Dean Salamanca and Marco Miggiaccio s/h/a Marco Migliaccio, move inter alia to dismiss plaintiff's complaint.
This is an action to recover damages for personal injuries by plaintiff, Keith J. Lane Jr., between December 9, 2008 and March 18, 2010, as a result of inter alia being repeatedly sexually assaulted by another student while he was an infant enrolled in the Special Education Program, 233Q, at the High School for Construction Trades, Engineering and Architecture, located at 94-06 104th Street, in the County of Queens, City and State of New York.
Pursuant to General Municipal Law (GML) § 50-e[1][a], service of a notice of claim within 90 days after a claim arises is a condition precedent to the commencement of a tort action against the City of New York and the New York City Department/Board of Education (See Decoteau v. City of New York, 97 AD3d 527 [2d Dept. 2012]; Shahid v. City of New York, 50 AD3d 770 [2d Dept. 2008]; Laroc v. City of New York, 46 AD3d 760 [2d Dept. 2007]).
Plaintiffs served their notice of claim on defendants on June 9, 2010. Defendants contend that this notice of claim is untimely for any causes of action based upon incidents of sexual assault that occurred prior to March 11, 2010, as such causes of action accrued more than 90 days prior to service of the notice of claim.
Contrary to defendants' contentions, plaintiffs' theory of recovery is not predicated on each individual incident of assault but rather is based on defendants' continuous failure to provide adequate supervision during that time period which ultimately allowed inter alia the subject sexual assaults to occur.
As such, plaintiffs' notice of claim is timely for all causes of action claimed therein pursuant to the continuing violation doctrine which tolls the accrual of the claim until the commission of the last wrongful act (See Selkirk v. State, 249 AD2d 818, 819 [3d Dept. 1998]).
Defendants also claim plaintiffs' complaint, which was filed on June 17, 2011, must be dismissed as to all causes of action accruing prior to March 18, 2010, based upon plaintiffs' failure to commence an action for those claims within one year and ninety days pursuant to GML 50-i[c].
Although defendants purport to be moving pursuant to CPLR § 3211[a][7], a motion to dismiss based upon statute of limitations grounds falls under CPLR § 3211[a][5]. In addition, any such motion is required to be made prior to service of the responsive pleading (See CPLR § 3211[e]; Bowes v. Healy, 40 AD3d 566 [2d Dept. 2007]).
As defendants served their answer on January 25, 2013, , that portion of defendant's application seeking to dismiss the complaint on a statute of limitations ground is untimely.
Such a defense is without merit in any event pursuant to the continuing violation doctrine (See Selkirk, supra, at 819). In addition, the statute of limitations for all causes of action on behalf of the infant was tolled at least until the infant reached the age of majority on September 1, 2010 (See CPLR § 208; Henry v. City of New York, 94 NY2d 275, 278-83 [1999]).
Defendants have likewise fail to demonstrate that the statute of limitations did not continue to be tolled after the infant reached the age of majority based as a result of his disability (See CPLR § 208; Ferreira v. Maimonides Med. Ctr., 43 AD3d 856, 858 [2d Dept. 2007]).
Nevertheless, it is well established that the City and the BOE are separate legal entities and the City cannot be held liable for the torts committed by the BOE and its employees (See Allende v. City of New York, 69 AD3d 931, 932 [2d Dept. 2010]; Perez v. City of New York, 41 AD3d 378, 379 [1st Dept. 2007]). As such, the City is not a proper party to this action.
Accordingly, defendants' motion is granted to the extent that plaintiff's complaint is dismissed as asserted against defendant, the City of New York, only.
The motion is denied in all other respects.
June 3, 2015 ____________________
J.S.C.