Opinion
2011-08-9
Patrick J. O'CONNOR, respondent,v.HUNTINGTON U.F.S.D., et al., appellants.
Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby and Kelly E. Wright of counsel), for appellants.
Steven L. Levitt & Associates, P.C., Williston Park, N.Y. (James J. Daw, Jr., Trevor Gomberg, and Jennifer Ann Wynne of counsel), for respondent.
In an action, inter alia, to recover damages for intentional infliction of emotional distress, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Mayer, J.), dated March 7, 2011, as denied that branch of their motion which was for summary judgment dismissing the third cause of action alleging negligent supervision.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the third cause of action alleging negligent supervision is granted.
“Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to the commencement of an action against a school district” ( Matter of Surdo v. Levittown Pub. School Dist., 41 A.D.3d 486, 487, 837 N.Y.S.2d 315; see Education Law § 3813; General Municipal Law § 50–e[1][a] ). Although “courts have not interpreted the statute to require that a claimant state a precise cause of action in haec verba in a notice of claim” ( DeLeonibus v. Scognamillo, 183 A.D.2d 697, 698, 583 N.Y.S.2d 285), “a party may not add a new theory of liability which was not included in the notice of claim” ( Semprini v. Village of Southampton, 48 A.D.3d 543, 544, 852 N.Y.S.2d 208; see Mazzilli v. City of New York, 154 A.D.2d 355, 357, 545 N.Y.S.2d 833).
Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the third cause of action alleging negligent supervision by submitting proof that the notice of claim served by the plaintiff did not mention this theory ( see Hudson Val. Mar., Inc. v. Town of Cortlandt, 79 A.D.3d 700, 704, 912 N.Y.S.2d 623; Bryant v. City of New York, 188 A.D.2d 445, 446, 590 N.Y.S.2d 913; Demorcy v. City of New York, 137 A.D.2d 650, 650–651, 524 N.Y.S.2d 742). In opposition, the plaintiff failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the third cause of action alleging negligent supervision.
SKELOS, J.P., BELEN, HALL and ROMAN, JJ., concur.