PETER A. WRIGHT as Parent of Nicole Wright Plaintiff(s),
NEW YORK CITY BOARD OF EDUCATION & JEAN MCKEON, AS PRINCIPAL, P.S. #197, Defendants Index No. 401901/2012 File No. 2012-042812
Louis B. York, J.S.C.
In this personal injury action pro se plaintiff Peter Wright ("Wright"), as parent of Nicole Wright ("Nicole"), alleges that on or about September 9, 2009, Nicole's classmates verbally and physically assaulted her. Plaintiff alleges that this abuse continued throughout the next three school years and that the Principle and staff did not intervene. Defendants New York City Board of Education and P.S. #197 Principal Jean McKeon now move for summary judgment under New York General Municipal Law Sections 50-e and 50-i and CPLR Section 3013, on the grounds that plaintiff failed to file a timely notice of claim and that plaintiffs complaint is time-barred by the statute of limitations. Defendants also move for dismissal on the ground that plaintiff did not provide the prerequisite notice regarding his allegations under CPLR Section 3013. Alternatively, defendants request that if this court denies this motion, it changes the venue of matter to the County of Queens. For the reasons below, the court grants the motion and dismisses the action.
Peter Wright alleges that his 11-year-old daughter, Nicole Wright, was verbally and physically assaulted on September 9, 2009 at or on her way to Public School #197. Wright alleges that this abuse continued for three years until Nicole was granted a transfer to Public School #47Q. Wright also contends the Jack McKeon, Principal of P.S. #197, and other staff members were aware of this abuse and did not intervene.
The parties dispute whether plaintiff served upon defendants a notice of claim within 90 days of the incident. Plaintiff alleges he properly served defendants within 90 days of September 9, 2009. Accordingly, plaintiff has not sought leave to serve defendants with late notice. Defendants assert they were not served until June 12, 2012 when plaintiff filed a notice of claim with the Department of Education.
The parties also dispute whether plaintiffs pleading is adequate. Plaintiff contends that the over the course of three years, other students abused Nicole by shoving her down a flight of stairs, smashing her forehead into a concrete wall, kicking her legs during class, and punching her in the nose. Plaintiff alleges that these incidents caused Nicole to suffer a concussion, severe headaches, a permanent bump on her forehead, insecurity about this bump's appearance, and panic attacks.
Under CPLR 3212(b), a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." Under CPLR 3211(a)(7), a party may dismiss one or all causes of action if the "pleading fails to state a cause of action."
1) General Municipal Law
a. Section 50-e
Any case "founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action ... the notice of claim shall ... be served . . .within 90 days after the claim arises, " under General Municipal Law Section 50-e (1) (a). Notice of claim is a statutory condition precedent without which a party cannot bring an action against a municipal entity. See Scantlebury
v. N.Y. City Health & Hospital Corp., 4 N.Y.3d 606, 609, 797 N.Y.S.2d 394, 396 (2005). Defendants argue that plaintiff failed to file a claim within 90 days of September 9, 2009 and therefore the court should dismiss the action.
First, plaintiff alleges in his complaint that he served defendants with the notice of claim within 90 days of the September 2009 incident. However, in opposing this motion plaintiff has provided no evidence for support of this alleged service. Defendants assert they were not served until June 12, 2012 when plaintiff filed his claim with the Department of Education. Plaintiffs first allegation must be dismissed, as defendants were not served notice of claim within the 90-day limitation period.
Second, from his papers it appears plaintiff alleges that the 90-day limitation period is extended by the continuing wrong doctrine. Plaintiff argues that the tortious abuse of his daughter, which spanned three years, constitutes a continuing wrong. A continuing wrong occurs where "the harm sustained by the complaining party is not exclusively traced to the day when the original objectionable act was committed." Covington v. Walker. 3 N.Y.3d 287, 292, 786 N.Y.S.2d 409, 411 (2004). "If a continuing wrong is alleged, the action is not time-barred because the cause of action continues to accrue anew, each day the wrong is perpetrated." Townof Huntington v County ...