Below I have posted some cases out there on the internet which deal with the issue of whether or not the City can be sued or the Board of Education or the Department of Education. What a mess the Mayor has made (and I dont think this was unintentional)!
2008 NY Slip Op 28002
NICOLE NACIPUCHA, INF., Plaintiff(s),
v.
CITY OF NEW YORK, Defendant(s).
14395/2005.
Supreme Court of the State of New York, Bronx County.
Decided January 3, 2008.
Greenberg & Stein, New York, NY, Plaintiff.
Michael Cardozo, Esq., Bronx, NY, Defendant.
PAUL A. VICTOR, J.
Plaintiffs, via an Order To Show Cause served upon the City of New York, seeks leave for late filing of a notice of claim nunc pro tunc, against the New York City Board of Education and the New York City Department of Education. The defendant, City of New York, cross moves to dismiss.
A MEA CULPA OPPORTUNITY
This motion, made by plaintiff, presents a platform to remedy, as well as clarify, a prior decision made by this Court which erroneously held that, as a result of the enactment of Chapter 91 of the Laws of 2002, the City of New York (and not the new hybrid Department/Board of Education) was the proper party defendant for torts allegedly committed on school property by school employees. There were many such prior erroneous decisions; and there are now many pending motions for permission to serve a late notice of claim against the "proper party".
RELEVANT FACTS AND BACKGROUND
In this case the plaintiffs allege that the infant plaintiff was injured on August 10, 2004 due to defects in a playground slide located at PS 218 in the Bronx. Within 90 days thereof (i.e.,on November 4, 2004), the plaintiffs' served a notice of claim on the defendant, New York City by service upon the New York City Comptroller, alleging, among other things, that the City of New York and the Board of Education were negligent in the ownership, operation, maintenance and control of PS 218.
Pursuant to a demand made by Comptroller a 50-H hearing was held on December 29, 2004. In a pre-action discovery proceeding the City of New York admitted possession and control of the subject playground slide; and on March 3, 2005 allowed it to be inspected and photographed, and agreed to preserve it. It is significant to also note that at a deposition, a school custodian testified that he was informed of the accident almost immediately after it happened; that he immediately went with another school employee to inspect the slide; that a school teacher pointed out the defect on the slide which allegedly caused the accident and that he personally removed the defective slide on that date; all of which was corroborated in a report thereafter made by the school custodian.
By letter dated April 3, 2005, the City acknowledged that the claim involved the school board of education; and stated, among other things, that "the City of New York Office of the Comptroller, in an attempt to settle this case will be submitting offers into the cybersettle settlement system...."
Procedural History
An action against the City of New York was commenced by the service of a summons and complaint on April 6, 2005. The City interposed its answer on May 27, 2005 and therein did not deny ownership, maintenance and control of the premises. In its answer the City merely denied knowledge or information concerning ownership, maintenance and control of the premises. Thereafter post action discovery (including a preliminary conference) was commenced. When the City failed to provide the discovery demanded by the plaintiffs, the plaintiffs moved to compel; and the City cross-moved to dismiss, claiming for the first time that it was not a proper party.
By order and decision dated November 11, 2005, this court denied the defendant's motion to dismiss relying on the authority of its prior decision in Ocasio v. City of New York, NYLJ 11/1/2005, p.18 col.3, as well as upon Justice Walker's decision in Perez v. City of New York, 9 Misc 3d 934 (2005), each of which held, in essence, that, pursuant to amendments to Chapter 91 of the laws of 2002, the re-organized "Board of Education" was subsumed by a newly created Department of Education of the City of New York; and thus the City of New York was the proper party for actions and claims arising from torts occurring on school property.
By order of the Appellate Division, First Department, dated June 28, 2007, Justice Walker's decision in Perez (and by implication this Court's decision in Ocasio) were reversed (41AD 3d 378 [1st Dept. 2007]).
The plaintiffs now move by order to show cause seeking permission to serve a late notice of claim against the New York City Board of Education and the New York City Department of Education. It is observed that (although the order to show cause requests permission to serve a late notice of claim against the New York City Board of Education and the New York City Department of Education, and the proposed notice of claim which is annexed as an exhibit properly names these entities as proposed defendants), the order to show cause itself names only the City of New York as a defendant, and it was served only upon the City via service upon its attorney, the Corporation Counsel.
The City opposes plaintiff's motion, stating that for both the infant and adult plaintiff, the application is untimely, and the City cross-moves for dismissal of the complaint in its entirety for failure to state a claim upon which relief can be granted.
THE STATUTORY SCHEME FOR CLAIMS AGAINST THE BOARD
The Board of Education Prior to 2002
The Board of Education for the City of New York (hereinafter "the Board") was created as a public corporate entity which is a separate and distinct from the City of New York (hereinafter "the City"). (L. 1901, Ch. 466; Charter § 1062; Gunnison v. Board of Education of New York, 176 NY 11 [1903]; The Titusville Iron Company v. The City of New York, 207 NY 203, 208 [1912]; Campbell v. City of New York, 203 AD2d 504 [2d Dept. 2004].) Consequently, it has long been held that no relation of principle and agent exists between the Board and the City, and therefore the City is not liable for torts committed by the Board or its employees. (Ham v. Mayor of the City of New York, 70 NY 459 [1877]; The Titusville Iron Company v. City of New York, 207 NY, supra at 208 [1912].) Thus it was held that the City of New York is clearly not a proper party to any proceedings arising out of alleged torts committed on school property by the Board of Education or its employees. (Divisich v. Marshal, 281 NY 170, 173 [1939]; Campbell v. City of New York, 203, AD2d 504 [2d Dept. 1994]; Cruz v. City of New York, 288 AD2d 250 [2d Dept 2001]; Goldman v. City of New York, 287 A.D2d 689 [2d Dept. 2001].); despite the fact that the City is the title fee owner of said property (New York City Charter §521).
Section 521 of the New York City Charter, provides in relevant part that:
"The title to all property***now or that may hereafter be acquired for school were education purposes***shall be vested in the City of New York, but shall be under the care and control of the Board of Education***; and [s]uits in relation to such property shall be brought in the name of the said Board of Education****"
Therefore, pursuant to the statutory scheme in place prior to the 2002 amendment to the Education Law, it was clearly required, as a pre-condition to an action against the Board of Education, that a notice of claim and all process be served upon the Board at its designated location at 65 Court Street Brooklyn, New York in compliance with the requirements of the General Municipal Law and Education Law (See, GML § 50-e (3) (a); § 50-i (1); Education Law § 2562 and §3813)[1].
The New Department of Education
By chapter 91 of the Laws of 2002, the Education Law was amended so as to radically restructure the governance of the school district of the City of New York. The amendment provided, among other things, that the Mayor of New York was empowered to appoint a chancellor who would preside over a Board of Education which was to be expanded from seven to thirteen members, the majority of which were also to be appointed by the Mayor of the City of New York. Five Board members are selected by the Borough Presidents.
Although that legislation itself made no specific reference to a "Department of Education of the City of New York", the by laws subsequently adopted by the Board, provide that this thirteen member body "shall be known as the Panel for Educational Policy", which together with the Chancellor and other school employees is designated as the "Department of Education of the City of New York".[2] To add to the emphasis upon mayoral control, an official notice regarding an agent for service upon this newly created hybrid "Department" was published in the New York Law Journal on November 12, 2002:
NEW COURT NOTICE
New York City Law Department as agent for service for the New York City Department or Board of Education Effective Monday, November 4, 2002, the New York City Law Department has been authorized as the agent and sole representative for the New York City Department or Board of Education upon whom (1) notices of claim against the New York City Department or Board of Education shall be served, and (2) service of process and litigation papers in actions or proceedings against the New York City Department or Board of Education shall be made. As of November 4, 2002, such documents shall be served on the New York City Law Department at 100 Church St. (Fourth floor), New York, between 8a.m. and 6p.m., Monday through Friday. The New York City Department or Board of Education will no longer accept service of notices of claim, process, or litigation papers at the Board of Review at 65 Court St. Brooklyn. Any subpoena duces tecum, however, should be served upon the New York City Department of Education at its offices at its offices at 52 Chambers St. (first floor), New York, New York. A subpoena seeking the testimony of an individual must be served upon the individual in accordance with the relevant provisions of the civil practice law and rules." [emphasis added]
The above referenced "Law Department" in the above " New Court Notice" is, of course, a unit within the office of the Corporation Counsel for the City of New York. Thus, since CPLR 311 (a) (2) provides that personal service "upon the City of New York [shall be made] to the Corporation Counsel or to any person designated to receive process in writing filed in the office of the Clerk of New York County", it appears that both the City and the Board now share the same agent and representative for service. This is also apparent from, and consistent with, General Municipal Law § 50-e (3) which provides, with reference to service of a notice of claim that "the notice shall be served on the public corporation against which the claim is made by delivering a copy thereof, personally, or by registered or certified mail, to the person designated by law as one to whom a summons in an action in the Supreme Court issued against such corporation may be delivered, or to an attorney regularly engaged in representing such public corporation, entities." [emphasis added] Clearly, therefore, since the City of New York and this hybrid Department/Board of Education are represented by the same attorney, they each share the identical authorized and/or designated agent for service of process.
In combination, the wholesale transfer of power to the Mayor of the City of New York, together with the by-law's reference to the "Department of Education of the City of New York", and the designation of the City's attorney (the corporation counsel) as the agent and sole representative for this new hybrid entity made it reasonable to assume that this newly created "Department of Education of the City of New York" was another mayoral agency (such as the Police Department) answerable to the City of New York, which could be held responsible for torts committed by that agency. At least, that is the way it appeared to Justice Walker (in Perez, supra) and this Court (in Ocasio, supra) and to many of our colleagues. (See, e.g., Nasser ex.rel. Nasser v. Nakhbo, 13 Misc 3d 1223 (A), 831 N.Y.S..2d 348; Williams v. City of New York, 2006 WL 2668211; Ximines v. George Wingate High School, 2006 WL 2086483; See also, Matter of P.I..v. New York City Board of Education, 10 Misc 3d 1073(A); 814 NYS2d 819).
However, by order and decision of the Appellate Division, First Department, Perez, supra, was reversed with the following observations:
"While the 2002 amendments to the Education Law (L. 2002, ch 91) providing for greater mayoral control significantly limited the power of the Board of Education (see assembly Mem in support, 2002 McKinney's session laws of NY, at 1716-1717), the City and Board remain separate legal entities (Gonzalez v. Esparza, 2003 WL 21834970, 2003 US Dist Lexis 13711 [SDNY 2003] [changes in statutory scheme of regarding interplay between board and city best described as "political"]; see also Gold v. City of New York, 80 Ad2d 138, 140 [1981]). The legislative changes do not abrogate the statutory scheme for bringing lawsuits arising out of torts allegedly committed by the Board and its employees, and the City cannot be held liable for those alleged torts. (see Gonzalez, 2003 WL 21834970 at 2, 2003 US Dist Lexis 13711 at 5)"(emphasis added; 41 AD3d 378, 379)
The Red Flags
Despite the confusion caused by all of the above, there were red flags (even after the 2002 amendments) which should have alerted both the bench and the bar that the issue of the responsibility for torts committed on school property by Board employees was, at the very least, "unclear". For example, the 2002 amendment to Education Law § 2590-b begins with the caution that "The Board of Education of the City school district of the City of New York is hereby continued."(emphasis added). In addition, in the body of that provision, it also states that "all appointed members shall serve at the pleasure of the appointing authority and shall not be employed in any capacity by the City of New York." (emphasis added). Most importantly, Section 521 of the City Charter (which provides that all school property "shall be under the care and control of the Board of Education" and that "suits in relation to such property shall be brought in the name of the said Board of Education"), were not amended and continue as binding statutory mandates. Thus, it is quite understandable that the Appellate Division in Perez, supra., found and held that " the City and Board remain separate legal entities*** [and] the legislative changes do not abrogate the statutory scheme for bringing lawsuits arising out of torts allegedly committed by the Board and its employees, and the City cannot be held liable for those alleged torts".
THE GENERAL MUNICIPAL LAW
A Notice of Claim A Condition Precedent
A notice of claim is a statutory device that creates a condition precedent to the right to bring an action. (See, GML §50-e(3); § 50-i; Education Law §2562 and §3813); and said notice must be served "within a 90 days after the claim arises." (GML §50-e (1)(a).) This statutory precondition serves "to enable municipalities to pass upon the merits of a claim before the initiation of litigation and thereby forestall unnecessary lawsuits" (Alford v. City of New York, 115 AD2d 420, 421, 496 NYS2d 224 [1st Dept. 1985], affirmed, 67 NY2d 1019, 503 NYS2d 324, [1986]). Thus, subdivision §50-e [3] of the General Municipal Law (as distinguished from the requirements for permission to serve a late claim pursuant to §50-e [5], [6] and [7]), is strictly construed. As stated by the Court of Appeals:
"[W]e have long held, statutory requirements conditioning suit [against a governmentalentity] must be strictly construed'. (Citations omitted) This is true even where the Department had actual knowledge of the claim or failed to demonstrate actual prejudice'. (Citations omitted.) We have repeatedly rejected, and now reject again, proposals to compromise the strict statutory notice of claim requirement, because to do so would lead to uncertainty and vexatious disputes". (Varsity Transit v. Board of Education, 5 NY3d 532, 536 [2005])
Applications For Leave To Serve a Late Notice of Claim
Section 50-e (5) provides that upon application in a special proceeding or as a motion in an already pending action, the court, in its discretion may extend the time to serve a notice of claim. Section 50-i (1)(c) cautions and requires that an "action or special proceeding shall be commenced within one year and 90 days after the happening of the event upon which the claim is based except that wrongful death actions shall be commenced within two years after the happening of death".The untimely service of a notice of claim, without leave of the court, has been held to be a nullity (Kokkinos v. Dormitory Authority of the State of NY, 238 AD2d 550, 657 NYS2d 81 [2d Dept. 1997], but an application made even after the commencement of an action is permissible provided that the application, as well as the action, are commenced within the one year and ninety day statute of limitations. (See § 50-e(5) and §50-i [1]; De La Cruz v. City of New York, 221 AD2d 168, 633 NYS2d 145 [1st Dept. 1995]). Therefore, although an application can be made before or after the commencement of an action, if there is a failure to seek leave to serve a notice of claim within the one year and ninety days, the court is required to dismiss the complaint.( Hall v. City of New York, 1 AD3d 254, 768 NYS2d 2 [1st Dept. 2003]; Armstrong v. New York Convention Ctr. Operating Corp., 203 AD2d 170, 610 NYS2d 267 [1st Dept. 1994] ["The court lacked the discretion to excuse plaintiffs' late service of the notice of claim since their motion for such relief was not made until after the one-year Statute of Limitations had run, and it makes no difference that plaintiffs, without court leave, had served the notice of claim within the limitations period."].)
Only a tolling can extend the time, otherwise the above limitations period is inflexible. For tolling see, CPLR 208 and 210; Kotlyarsky v. New York Post, 195 Misc 2d 150, 757 NYS2d 703; Pierson v. City of New York, 56 NY2d 950, 453 NYS2d 615, 439 NE2d 331; Abad v. New York City Health & Hosp. Corp., 214 AD2d 342, 625 NYS2d 889 [1st Dept.1995]; Lopez v. Lincoln Hosp., 272 AD2d 275, 709 NYS2d 398 [1st Dept. 2000].
Remedial Amendment/ Liberal Construction
Prior to 1976 many courts construed GML § 50 (e) rigidly thereby depriving claimants of the right to commence a tort action against public entities despite the merit of the claim and the severity of the claimant's injury. In 1976 a remedial amendment to §50 (e) was proposed and adopted by the legislature. The committee that proposed said amendment explained that "it is intended that older judicial decisions construing the provisions of section 50 (e) rigidly and narrowly will be inapplicable as a result of these remedial amendments which will enable the court to apply the provisions in a more flexible manner to do substantial justice." (emphasis added; Committee to Advise and Consult with the Judicial Conference). In addition, in the published memorandum submitted in support of the said legislation, it was emphasized that:
"These amendments introduce a degree of flexibility long needed in this area of law without subverting the basic purposes of a notice of claim provisions. It is intended that these remedial amendments will overrule older decisional law which construed rigidly and narrowly the provisions related to late filing and will enable the court to construe these provisions liberally to do substantial justice". (1976 Legislative Annual; emphasis added.)
Subsequent to enactment of this remedial legislation, courts have (almost) uniformly recognized that the judiciary has a mandate to liberally construe its provisions; and courts have been provided with sufficient discretion to afford greater flexibility in granting leave to serve a notice of claim after the 90 day period has expired, as long as the application is made within the year and 90 day limitations period. (See, e.g., Heinman v. City of New York, 85 AD2d 25, 28, 447 NYS2d 158 [1st Dept. 1982]; Barnes v. County of Onondaga, 103 AD2d 624, 627, 481 NYS2d 539, aff'd, 65 NY2d 664, 491 NYS2d 613 [1984]).
The Relevant Factors
When an application to serve a notice of claim is made prior to the expiration of the statute of limitations, the Court, in the exercise of its discretion, is required by section 50-e (5) to consider all relevant facts and circumstances, including the following factors[3]:
(1)whether the plaintiff has at least any minimally viable claim;
(2)whether plaintiff demonstrated a reasonable excuse for failure to timely serve a notice of claim;
(3)whether the public corporation or its attorney acquired actual knowledge of theessential facts constituting the claim within 90 days of its accrual or areasonable time thereafter;
(4)whether the claimant was an infant, or mentally or physically incapacitated, and the applicability of the tolling provisions, and
(5)whether the delay would substantially prejudice the municipality inmaintaining its defense on the merits
A Viable Claim
While, as a general proposition, a court entertaining a timely application to serve a late notice of claim will not examine the merits of the underlying cause of action, the motion should be denied only when the claim is "patently meritless." (Caldwell v. 302 Convent Ave. Housing Development Fund Corp., 272 AD2d 112, 707 NYS2d 423 [1st Dept. 2000]; Matter of Katz v. Town of Bedford, 192 AD2d 707 [2d Dept. 1993] 708, 597 NYS2d 140; Pearson v. New York Health and Hospitals Corp, 43 AD3d 92 [1st Dept.2007][allowed a late notice of claim to be filed in an infant's lead poisoning case even though two years had passed since he had last been treated at the defendant's facility].)
Reasonableness Of Excuse
In determining whether a plaintiff presents a reasonable excuse for the delay in filing notice of claim, the court is not bound to accept excuses on their face, but must determine whether they constitute a legitimate reason for failure to comply with the statutory mandate. (See, e.g., Hilda B. v. New York City Hous. Auth., 224 AD2d 304, 638 NYS2d 36 [1st Dept. 1996] [report of the psychologist and plaintiff's affidavit, which stated that she was unable to talk about the sexual assault until recently, accepted as a reasonable excuse]; but see, F.P. v. Herstic, 263 AD2d 393, 693 NYS2d 123 [1st Dept. 1999] [defendants' evidence completely undermined expert's affidavit that plaintiff's Silent Rape Reaction prevented her from seeking prompt legal advice].)
While the reasonableness of the excuse for the delay may be open to question, the absence of a reasonable excuse is not necessarily fatal (see, Matter of Jose Urgiles v. New York City School Construction Authority, 283 AD2d 434, 723 NYS2d 876 [2d Dept. 2001];. Matter of Alvarenga v. Finlay, 225 AD2d 617, 639 NYS2d 115;Diallo v. City of New York, 224 AD2d 339, 638 NYS2d 58 [1st Dept. 1996]; Matter of Serrano v. New York City Hous. Auth., 197 AD2d 694, 602 NYS2d 935 [2d Dept. 1993]; Matter of Morgan v. New York City Hous. Auth., 181 AD2d 890, 581 NYS2d 425; Matter of Kurz v. New York City Health and Hosps. Corp., 174 AD2d 671, 571 NYS2d 533).
Actual Knowledge
Receipt of actual knowledge of the facts constituting the claim within 90 days by the public corporation or its attorney satisfies this factor. Note, however, that the mere filing of a report or the mere possession of a record concerning the event may not automatically satisfy the "actual notice" requirement of section 50-e if said record or report does not contain sufficient "essential facts constituting the claim."[4] (See, Williams v. Nassau County Med. Ctr., 6 NY3d 531, 814 NYS2d 580, 847 NE2d 1154 [2006])
Infants and Impaired Persons
As provided in Section 50-e (5) a delay in serving a notice of claim which results from infancy or incapacity is a factor which the Court should also be consider upon an application to extend the time to serve a notice of claim. (Pearson v. New York Health and Hospitals Corp, 43 AD3d 92, [1st Dept. 2007][allowed a late notice of claim to be filed for an infant who has sustained lead poisoning, even though two years had passed since he had last been treated at the defendant's facility].)
The Court noted that it would be "unfair and unjust" to deprive the infant of a remedy based on her mother's ignorance of the law, and also noted that the defendant possessed medical records affording it actual knowledge of the essential facts constituting the claim.
Substantial Prejudice
Section 50-e (5) expressly requires the Court to consider "whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits." (Williams v. Nassau County Medical Center, 6 NY3d 531[ 10 year delay in serving a notice of claim for an infant found to result in substantial prejudice];Lefkowitz v. City of New York, 272 AD2d 56, 707 NYS2d 316 [1st Dept. 2000] [11 months between the time of the accident and the making of the application was held to prejudice defendants ability to investigate the alleged sidewalk defect].)
DISCUSSION
It is noted at the outset that, although the proposed notice of claim (which is annexed as an exhibit to the order to show cause) properly identifies the New York City Board of Education and the New York City Department of Education, the order to show cause per se (as well as all pleadings in this case) identify only the City of New York as a defendant; and no application has been made to amend all documents to name the proper entities as defendants. Moreover, the order to show cause only provides for service upon the City of New York and not upon the proper entities. Thus the Department and Board still do not technically appear in this proceeding, despite the fact that the order to show cause was served at 100 Church Street upon the Corporation Counsel which, pursuant the aforesaid " New Court Notice" now serves as counsel, agent and sole representative for the Department/ Board of Education as well as counsel and authorized agent for service for the City of New York.
Is the above failure to name the proper party in the order to show cause and to serve the corporation counsel in its capacity as agent and sole representative for the Department and Board a fatal defect which deprives this court of jurisdiction over said entities ? (See, Varsity Transit Inc. v. Board of Education, 5 NY3d 352 [2007]; Campbell v. City of New York, 203 AD2d 542 [1994]; Eso v. County of Westchester, 141 AD2d 542 [2d Dept. 1988];Rodgers v. City of New York, 169 Ad2d 763 [1991]; Salner v. City of New York, 12 AD2d 771 [1961]); or, based upon the totality of circumstances presented, is it a " mistake, omission, irregularity or defect made in good faith" which " may in the discretion of the court be corrected, supplied or disregarded" as provided by GML § 50-e (6)? As in Eso and Rodgers, supra, no action or special proceeding is yet pending against the Department and Board of Education; and even if this court were to consider the order to show cause herein as an appropriate special proceeding, it named, and was served on, the wrong party defendant and thus it appears that this court lacks jurisdiction. Varsity Transit Inc. v. Board of Education, 5 NY3d 352 [2007]]; Eso v. County of Westchester, 141 AD2d 542 [2d Dept. 1988] As observed in Eso:
"Even if this motion were to be treated as a special proceeding, the respondent did not effectuate service in strict compliance with CPLR 403 (c) and 311 (4). In order to obtain jurisdiction over the County or the County Police, he was required to serve a county official designated under CPLR 311 (4) by personal delivery of the papers to such an official (see, CPLR 403 [c]). Service of the notice of motion by mail upon a law firm which represented the county in various actions does not constitute service upon the proper official (cases cited)" (141 AD2d 542)
Since the Corporation Counsel was served in its capacity as attorney for the City (and not in its role as agent and sole representative of the Department and Board) it can be found that strict compliance with statutory service requirements was not effectuated; and it most likely would be held that any attempt by this court to " disregard or correct" these defects would be an abuse of discretion. This court has no desire to risk placing plaintiffs in another "Catch 22" which would most likely result in a reversal and further prejudicial delay for all concerned parties.
The court has considered all relevant factors recommended by GML § 50-e (5) and finds that plaintiffs have demonstrated a reasonable excuse for failure to timely serve a notice of claim and have sufficiently established all other criteria necessary for this court to allow a late service of the notice, at least as to the infant plaintiff who has been insulated from the running of the statute of limitations by the tolling provisions of the CPLR. (See, CPLR 208 and Henry v. City of New York, 94 NY2d 275, 702 NYS2d 581 [1999] [statute of limitations tolled for the period of infancy, and toll not terminated by the acts of the Guardian in failing to timely take steps to pursue infant's claim]. The court finds, in addition, that the Department and Board of Education had timely actual notice of the facts constituting the claim and that the delay in filing a notice of claim and in the commencement of an action will not in any way prejudice them in maintaining a defense on the merits. Despite these findings however, the court finds itself constrained: (1) to deny plaintiffs application at this time, without prejudice to renewal when commenced in an appropriate manner against the proper public corporations; and (2) to grant the City's motion to dismiss.
Although it is a close question, the court has considered and rejected the proposition that the City should be estopped from asserting that it was an improper party. Although during the pre trial discovery phase of these proceedings, the City via the Corporation Counsel did represent Board employees and take possession of school equipment, and did not raise the "improper party" defense in its answer, and did not even clearly deny ownership and control of the premises, the court does not believe that the City's conduct was calculated to mislead or discourage the plaintiffs from serving a timely notice of claim (See, Campbell v. City of New York, 203 AD2d 504, supra at 505). In light of the confusion which followed the enactment of Chapter 91 of the Laws of 2002 and the cases interpreting same, this court will give the City the benefit of the doubt on the estoppel issue.
CONCLUSION
The motion by plaintiff is denied, with leave to renew, as indicated above. The cross-motion by the defendant City is granted. This constitutes the decision and order of the Court.
[1] Education Law §3813 (1), states:"1. No action or special proceeding, for any cause whatever, except as hereinafter provided, relating to district property or property of schools *** shall be prosecuted or maintained against any school district, board of education, board of cooperative educational services, school *** unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment. In the case of an action or special proceeding for monies due arising out of contract, accrual of such claim shall be deemed to have occurred as of the date payment for the amount claimed was denied".[emphasis added] Education Law §2562 states: "1. No action or special proceeding, for any cause whatever, shall be prosecuted or maintained against a board of education of a city having a population of four hundred thousand or more, unless it shall appear by and as an allegation in the complaint or necessary moving papers that at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the said board of education for adjustment, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after suchpresentment****"
[2] The by-laws of the Board state specifically that: "The Panel for Educational Policy is a part of the governance structure for the City School District of the City of New York, subject to the Laws of the State of New York and the Regulations of the State Department of Education. Other parts of the structure include the Chancellor, superintendents, community school boards, principals, and school leadership teams. Together this structure shall be designated as the Department of Education of the City of New York." [emphasis added] [http://www.nycenet.edu/panelfored/bylaws.pdf.];(See also, Varsity Transit Inc. v. Board of Education, 5 NY3d 352[2007] at fn.1)
[3] Sec. 50-e(5) provides in relevant part that:
"In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits".
[4] The listing of a sidewalk defect on a Big Apple map filed nine months before an accident did not suffice to give the city actual knowledge of the essential facts or nature of the claim. (Konstantinides v. City of New York, ___ NYS2d ___, 2000 WL 1782890 [2d Dept. 2000].) The filing of a police report does not, in itself, establish actual notice. "To adopt plaintiff's position that such circumstances gave defendant timely actual notice of the facts constituting his claim would be to substitute police reports for notices of claim in every instance, mandate that defendant investigate every possible cause of action that might be suggested in an accident report, disregard the prejudice caused by the lost opportunity to conduct a prompt investigation... " (Olivera v. City of New York, 270 AD2d 5, 704 NYS2d 42 [1st Dept. 2000]; see also, Walker v. NYC Transit Authority, 266 AD2d 54, 698 NYS2d 460 {266 AD2d 54} [1st Dept. 1999] [police "aided" report did not connect the occurrence with any negligence by Defendants, and thus did not constitute notice]; but see Matter of Cicio v. City of New York, 98 AD2d 38, 39-40, 469 NYS2d 467 {98 AD2d 38} [since defendants were in receipt of an accident report and an aided report, which indicated that there were no witnesses to the accident, filled out by the police officer who responded to the accident scene, they had, from the outset, notice of the facts upon which plaintiff's claim is premised.) Nor will the making of an accident report by Defendant's employee invariably establish actual knowledge of the essential facts constituting the claim within 90 days of the occurrence (see, Washington v. City of New York, 72 NY2d 881, 532 NYS2d 361, 528 NE2d 513 {72 NY2d 881}).
PHILIP v. CITY OF NEW YORK
Defendants move for an order dismissing plaintiff's complaint pursuant to CPLR §§ 3211 and 3212.
On October 20, 1999, plaintiff SK, a seventh-grade student, was injured during a fight with LC, a fellow student at the end of gym class. LC struck plaintiff in the head causing the hemorrhage of a latent congenital vascular malformation which necessitated approximately ten brain surgeries. Plaintiff alleges that the Board of Education of the City of New York (hereinafter “the Board”) was aware that plaintiff had previously and repeatedly been harassed and assaulted by fellow students, including LC, and that the Board was negligent in supervising the students; in failing to take necessary steps to protect plaintiff in light of the Board's knowledge of previous attacks on plaintiff; and in refusing to transfer plaintiff to a safer school after repeated requests by plaintiff's father. Defendants move for summary judgment on the grounds that plaintiff was a voluntary participant in the fight; that the Board had no notice of LC's alleged violent propensities because he had no prior history of violence; that plaintiff's allegations of prior incidents and complaints to the school fail to raise a triable issue of fact; and that pursuant to the New York Education Law and the New York City Charter, the City of New York (hereinafter “the City”) is not a proper party to this action.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986). In light of such a showing, if the party opposing the motion comes forward with evidence of issues of fact requiring a trial, the motion will be denied. Rebecchi v. Whitmore, 172 A.D.2d 600, 568 N.Y.S.2d 423 (2d Dept.1991). In reviewing a motion for summary judgment, the court accepts as true the evidence presented by the non-moving party. Fleming v. Graham, 34 A.D.3d 525, 824 N.Y.S.2d 376 (2d Dept.2006).
“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.” Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 (1994). See Lawes v. Board of Education of the City of New York, 16 N.Y.2d 302, 266 N.Y.S.2d 364, 213 N.E.2d 667 (1965); Smith v. Poughkeepsie City School District, 41 A.D.3d 579, 839 N.Y.S.2d 99 (2d Dept.2007); Siller v. Mahopac Central School District, 18 A.D.3d 532, 533, 795 N.Y.S.2d 605 (2d Dept. 2005). “In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated (citation omitted).” Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263, supra. See Smith v. Poughkeepsie City School District, 41 A.D.3d at 580, 839 N.Y.S.2d 99, supra; McLeod v. City of New York, 32 A.D.3d 907, 908, 822 N.Y.S.2d 562 (2d Dept.2006); Moody v. New York City Board of Education, 8 A.D.3d 639 640, 780 N.Y.S.2d 603 (2d Dept.2004); McElrath v. Lakeland Central School District, 18 A.D.3d 831, 796 N.Y.S.2d 121 (2d Dept.2005). Liability for injuries resulting from a fight between two students cannot be predicated upon negligent supervision if the plaintiff was a voluntary participant in the fight. See Ambroise v. City of New York, 44 A.D.3d 805, 806, 843 N.Y.S.2d 685 (2d Dept.2007); Legette v. City of New York, 38 A.D.3d 853, 832 N.Y.S.2d 669 (2d Dept.2007); Williams v. City of New York, 41 A.D.3d 468, 837 N.Y.S.2d 300 (2d Dept.2007); Williams v. Board of Education of City School District of City of Mount Vernon, 277 A.D.2d 373, 717 N.Y.S.2d 190 (2d Dept.2000).
The Board submits that it is entitled to summary judgment because the plaintiff was a voluntary participant in the fight with LC which would prohibit plaintiff's action based upon negligent supervision. The undisputed evidence reveals that LC initially cursed at plaintiff and plaintiff cursed back. LC threw the initial punch and plaintiff “hit back.” The Board maintains that plaintiff deliberately chose to continue the fight instead of retreating or seeking help from the gym instructor. The Board also maintains that it had no specific notice of LC's propensity for violent misconduct which is essential for a claim of negligent supervision. The principal testified that she was unaware of any disciplinary problems with LC and that to her knowledge, he had not been involved in any prior fights with plaintiff. The Board, therefore, contends that it is entitled to summary judgment dismissing the complaint against it.
The City maintains that pursuant to New York Education Law § 2554(4) and Chapter 20, § 521(a) and (b) of the New York City Charter, although the City retains title to the school building, it does not retain management, control or maintenance of the property. Therefore, the City contends, it is entitled to summary judgment dismissing the complaint against it.
In opposition to the motion, plaintiff maintains that the school was aware that plaintiff had previously and repeatedly been targeted and victimized by his fellow students. On September 17, 1996, a psychological evaluation was performed by the Board and it was noted that plaintiff's IQ was in the low average classification, similar to that found in children classified as “learning disabled” and that plaintiff needed to continue counseling. Plaintiff also submits the notes from the Pupil Personnel Committee wherein it was noted that plaintiff was having academic problems in the resource room and that on November 23rd and November 30th of 1998, his parent requested that plaintiff be transferred. The notes also indicated that plaintiff was having behavioral problems. However, the records pertaining to the two months immediately preceding the subject incident were unable to be located during discovery. Moreover, the only record available from plaintiff's guidance counselor is dated October 12, 1999 and noted that plaintiff had difficulty with his peers and that he often disturbed other students and became “extremely irritated” if others bothered him. In further support of plaintiff's contention that the Board had knowledge that he had been targeted and victimized by other students, plaintiff submits the examination before trial of plaintiff's father wherein he gave a detailed history of the complaints made to the school along with four specific incidents where plaintiff was attacked by other students in 1998. Plaintiff's father testified that he met with the principal about these incidents in 1998 immediately before Thanksgiving. Plaintiff submits a letter written by plaintiff's father and allegedly mailed on December 7, 1998 wherein he details the incidents of alleged harassment and physical assault and asks that his son be transferred. Plaintiff's father details similar incidents throughout the year of 1999. Mr. SanFilippo, director of pupil personnel services in community school district 20, testified at his deposition that he had no recollection of the plaintiff, the plaintiff's father, the letter alleged to have been sent by plaintiff's father, or any request by plaintiff's father to transfer plaintiff out of the school.
In reviewing a motion for summary judgment, the Court accepts as true the evidence presented by the non-moving party. Fleming v. Graham, 34 A.D.3d 525, 824 N.Y.S.2d 376 (2d Dept.2006). In view of the foregoing, a triable issue of fact exists as to whether the Board, in light of the alleged specific knowledge it had that plaintiff had previously been targeted and victimized by other students, should have provided closer supervision of plaintiff or taken other action to protect plaintiff's safety during school hours.
The Court further finds that questions of fact exist as to whether plaintiff was a voluntary participant in the fight with LC and whether the gym teacher provided adequate supervision of his students. Although LC threw the initial blow and plaintiff became active in the fight, it is for a jury to determine whether plaintiff was a voluntary participant in the fight or merely acting in self defense. See Ambroise v. City of New York 44 A.D.3d at 806, 843 N.Y.S.2d 685, supra; McLeod v. City of New York, 32 A.D.3d at 909, 822 N.Y.S.2d 562, supra. Moreover, it is unclear whether the teacher was present when the fight began. At his 50-h hearing, plaintiff testified that the teacher was checking on the time when this incident occurred. When asked where the teacher was checking on the time, plaintiff replied “in the hallway or on his watch. I'm not sure.” When asked if the teacher was in the gym, plaintiff replied yes. It is a question of fact whether the teacher was in fact in the gym or in the hallway. Consequently, triable issues of fact exist as to whether plaintiff's chronic problems with other students required closer supervision; whether the Board was on notice of such problems; whether the Board breached its duty to adequately supervise the plaintiff; and whether plaintiff was a voluntary participant in the fight.
Plaintiff's contention that summary judgment dismissing the complaint against the City should be denied based upon the City's duty to supervise the Board's employees is unavailing. It is well settled that the City cannot be held liable for torts allegedly committed by the Board and its employees. See Gonzalez v. Esparza, 2003 WL 21834970 (S.D.N.Y.2003); Perez v. City of New York, 41 A.D.3d 378, 837 N.Y.S.2d 571 (1st Dept.2007).
In view of the foregoing, defendant's motion for summary judgment dismissing the complaint is granted as to defendant the City of New York and denied as to the Board of Education of the City of New York.
The foregoing shall constitute the Decision and Order of the Court.
DONALD SCOTT KURTZ, J.
Then there's Pena v Robles
and:
New York State Supreme Court Judge Doris Ling-Cohen ruled in Matter of P.I. v New York City Bd. of Educ. 2006 NY Slip Op 50051(U) [10 Misc 3d 1073(A)] Decided on January 17, 2006 Supreme Court, New York County Ling-Cohan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431 that as the Panel For Educational Policy has no administrative or executive function, the City should take on liability claims for injuries occurring on school properties in New York City:
Ling Cohen: "Petitioner-father brings the instant application to serve a late notice of claim on behalf of himself and his infant son (infant-petitioner) in order to assert claims for damages against respondents the New York City Board of Education (Board of Education) and the City of New York (City), based upon an alleged sexual assault of the infant by a fellow student in the bathroom of a Junior High School located in New York, New York on or about February 14, 2005. The infant-petitioner is mentally retarded and also suffers from cerebral palsy. The father retained counsel on or about June 15, 2005. Petitioners' attorney attempted to serve a notice of claim on respondent City on or about June 17, 2005 and on respondent Board of Education on or [*2]about June 20, 2005, which was approximately one month after the expiration of the 90 day period. By letter dated July 14, 2005, the Office of the City Comptroller disallowed petitioners' notice of claim, as it was not served within 90 days of the alleged occurrence, as required by General Municipal Law (GML)§ 50-e (1) (a). Petitioners brought the instant application to serve a late notice of claim by order to show cause signed by this Court on August 4, 2005[FN1].
Discussion
1. The City's Assertion that the Claim is "Patently Meritless" as the Board of Education is the only Proper Party
Discussion
1. The City's Assertion that the Claim is "Patently Meritless" as the Board of Education is the only Proper Party
The City asserts that it is not a proper party to this matter and that the application to file the late notice of claim should be denied because the claim is "patently meritless". The City maintains that the only proper party in this case is the Board of Education.
As stated by the Appellate Division, First Department: "Ordinarily, courts should not delve into the merits of an action in determining an application to file a late notice except in the rare case when the claim is "patently meritless" ( Katz v. Town of Bedford, 192 AD2d 707, 708, 597 N.Y.S.2d 140).". Weiss v The City of New York, 237 AD2d 212 (1st Dept 1997). In view of the ambiguity engendered by the recent amendments to the Education Law transferring control over the City public schools to the Chancellor controlled by the Mayor, in the context of the other provisions of the Education Law, which left in place certain provisions as to the Board of Education, it cannot be said that the claim against the City is "patently meritless" at this preliminary stage of the litigation (see Matter of Catherine G v County of Essex, 3 NY3d 175, 178 [2004]).
In support of its argument, the City cites statutes and case law predating the amendments. For example, the City relies upon the pre-amendment version of Education Law § 2554 (4), which provides, in pertinent part: "...[t]he board of education in a city shall have the power and it shall be its duty:4. To have the care, custody, control and safekeeping of all school property or other property of the city used for educational, social or recreational work and not specifically placed by law under the control of some other body or officer, and to prescribe the rules and regulations for the preservation of such property."
However, the post-amendment version indicates that this cited provision only applies to cities "except the city board of the city of New York". Education Law § 2554. The City also refers to provisions of Chapter 20, § 521 (a) and (b) of the New York City Charter, which reflect the provisions of pre-amendment Education Law § 3554 (4).
However, the post-amendment version indicates that this cited provision only applies to cities "except the city board of the city of New York". Education Law § 2554. The City also refers to provisions of Chapter 20, § 521 (a) and (b) of the New York City Charter, which reflect the provisions of pre-amendment Education Law § 3554 (4).
Significantly, at least one recent lower court decision, Perez v Torres (9 Misc 3d 934 [Sup Ct, Bronx County 2005] [Walker, J.]), has denied a motion by the City to dismiss an action brought on behalf of a student seeking damages due to injuries caused by a slashing by two fellow students, on the grounds that the Board of Education is the proper party. The Court emphasized the fact that the amendments to the Education Law enacted in 2002 transferred the [*3]power to control and operate the New York City public schools from the Board of Education to the Chancellor controlled by the City's Mayor (see L. 2002, c. 91; see also Perez v Torres, 9 Misc 3d at 935).
Prior to the amendments, Education Law § 2554 prescribed the powers and duties of all city school boards, including the New York City Board of Education, to control and operate the schools. In 2002, Education Law § 2554 was amended, stripping from the New York City Board of Education the powers granted to other city school boards (L. 2002, c. 91, §§ 2- 4; see also Perez v Torres, 9 Misc 3d at 935). Instead, the amended provision of Education Law § 2590-h (17) transfers the powers previously exercised by the Board of Education to the Chancellor ( the exercise of which shall be in a manner not inconsistent with the provisions of this article and the city-wide educational policies of the city board") (L. 2002, c. 91, § 12; see also Perez v Torres, 9 Misc 3d at 935). The amendments to Education Law § 2590-h further provide that the "...chancellor shall serve at the pleasure of and be employed by the mayor of the city of New York by contract" (L. 2002, c. 91, § 12).
In addition, the amendments limit the powers of the Board of Education, now denominated as the Panel for Educational Policy, to city-wide educational policy issues (see Perez v Torres, 9 Misc 3d at 936). For example, the amended Education Law § 2590-g provides, in pertinent part: "The city board shall advise the chancellor on matters of policy affecting the welfare of the city school district and its pupils. The board shall exercise no executive power and perform no executive or administrative functions. Nothing herein contained shall be construed to require or authorize day-to-day supervision or the administration of the operations of any school within the city school district of the city of New York...."
Further, the members of the Board of Education "...shall not have staff, offices, or vehicles assigned to them or receive any compensation for their services, but shall be reimbursed for the actual and necessary expenses incurred by them in the performance of their duties" (Education Law § 2590-h [1] [a]).
Further, the members of the Board of Education "...shall not have staff, offices, or vehicles assigned to them or receive any compensation for their services, but shall be reimbursed for the actual and necessary expenses incurred by them in the performance of their duties" (Education Law § 2590-h [1] [a]).
In Perez v Torres, supra, the Court concluded that, in view of the fact that, pursuant to the 2002 amendments, the Board of Education/Panel for Education Policy performs no administrative functions and is not authorized to supervise any school within the New York City school district, it could not be held liable for failing to prevent a student's injuries (9 Misc 3d at 936). There are, however, cases from the federal courts which have concluded that, despite the 2002 amendments to the Education Law, the Board of Education, not the City, is the proper entity to be held liable for tort claims. For example, in Gonzalez v Esparza (2003 WL 21834970 [SD NY Aug. 6, 2003] [Kram, J.]), the District Court dismissed claims against the City arising out of a teacher's sexual relationship with a student, while allowing claims against the Board of Education to proceed. The Gonzalez court characterized the changes in the statutory scheme regarding the powers of the City and the Board of Education as "political".
Despite the recent amendments, the Board of Education continues to exist as a separate entity and continues to "for all purposes be the government or public employer of all persons appointed or assigned by the city board or the community school districts..." (Education Law § 2590-g [2]; Gonzalez v Esparza, 2003 WL 21834970*2; see also Marrero v City of New York, [*4]2004 wl 444548*2 [SDNY Mar. 10, 2004] [Cote, J] [dismissing discrimination claims by terminated school custodian against the City, as it is not liable for the torts of the Board of Education, which remains a separate and distinct entity and the " government and public employer of all persons appointed or assigned by the city board or the community school districts'" [Educ. Law § 2590-g [2]; see also Gonzalez v Esparza, supra).
In view of the developing state of the law on the powers of the City's Chancellor and the Board of Education, it cannot be said that petitioners' claims against the City are patently meritless at this preliminary stage of the litigation. Given the state of the law, and the attendant confusion surrounding the provisions of the Education Law as applied to the City and the Board of Education, the appellate courts may have an opportunity to construe the amended statutory provisions, and the Legislature may continue to clarify the respective roles of the chancellor and the Board of Education in the operation and control of the schools. Moreover, this matter does not involve the custody and control of school property, within the meaning of Education Law § 3554 (4). Instead, it concerns the alleged sexual abuse of a minor, who is mentally retarded and suffers from cerebral palsy. In addition, since the discovery process has not yet commenced, it is not possible to eliminate all liability by the City. Indeed, at this juncture, it is not appropriate to "delve into the merits" of this action, as the City has failed to establish that petitioners' claims are "patently meritless" as a matter of law (see Weiss v. City of New York, 237 AD2d at 212).
804 N.Y.S.2d 632
Supreme Court, Bronx County, New York.
Jamie PEREZ, an Infant by his Mother, Nancy TORRES and Nancy Torres, Individually, Plaintiffs,
v.
The CITY OF NEW YORK, Defendant.Sept. 9, 2005.
*935 Infant plaintiff, a student at Evander Childs High School, in the Bronx, commenced this action sounding in negligence after being slashed in the face with a sharp object by two fellow students, on January 9, 2003. The crux of defendant’s motion is that the City of New York is not a proper party to this action. Defendant argues that any alleged tort liability stemming from the incident lies with the “Department/Board of Education-a separate and distinct legal entity from the City of New York.” However, defendant offers no statutory authority identifying any entity known as the “Department/Board of Education.” In fact, the Department of Education and the Board of Education are distinct entities. By referring to Department/Board of Education, defendant elides the very issue raised by this motion.
In 2002, the Education Law was amended so as to radically restructure the governance of the school district of the city of New York. L. 2002, c. 91. The legislation, in order to provide for greater mayoral control of the schools, effected a wholesale transfer of power from the Board of Education to a chancellor, hired by and serving at the pleasure of the mayor. The Board of Education’s only remaining powers relate to city-wide educational policy issues. Education Law §§ 2554, 2590-g and 2590-h as amended by L. 2002, c. 91. See also Memorandum in Support, New York State Assembly and Memorandum of Legislative Representative of the City of New York, McKinney’s 2002 Sessions Laws of New York, pp. 1716-1719.
Significantly, the Department of Education is nowhere mentioned in the legislation and has no independent legal status. Rather, the Department of Education is a mayoral agency, just as are all the other city departments, with its chancellor, rather than its commissioner, answerable to the mayor.
Prior to the enactment of L. 2002, c. 91, the powers and duties of the New York City Board of Education to operate and control the schools were set forth in Education Law § 2554. That section was amended by L. 2002, c. 91, §§ 2-4, stripping from the city board of the city of New York the powers granted to other city school boards. Those powers were explicitly transferred to the chancellor by L. 2002, c. 91, § 12, amending Education Law § 2590-h(17).
Education Law § 2590-g cannot be more clear:
“The board shall exercise no executive power and perform no executive or administrative functions. Nothing herein contained shall *936 be construed to require or authorize the day-to-day supervision or the administration of the operations **634 of any school within the city school district of the city of New York.”
Thus, while the Board of Education continues to exist (denominated in it’s by-laws as the Panel for Educational Policy), its former powers and duties are exercised by the mayor through his or her employee, the chancellor. Furthermore, the only power granted to the Board with respect to litigation, contained in Education Law § 2590-g(6) is to “[a]pprove litigation settlements only when such settlements would significantly impact the provision of educational services or programming within the district.” [Emphasis added.] It is not argued or alleged that the outcome of this action would have any impact on the provision of educational services or programming.
In addition to having no executive or administrative powers, the Board of Education has no offices and no staff. Education Law § 2590-b(1)(a). The Court is left to wonder where and on whom one serves an entity which by law has no offices and no staff? More importantly, assuming that, in the appropriate circumstances, the Board of Education/Panel for Educational Policy may be sued, what is the liability of an entity which has no executive power, performs no administrative functions and is not authorized to supervise or administer the operations of any school with the city school district of the city of New York? Given its limited power, authority, and functions, what did the Board/Panel do or fail to do in this case? What ability did it have to prevent the plaintiff’s injuries?
The cases cited by defendant in support of its position were commenced prior to the enactment of L. 2002, c. 91, except for Gonzalez v. Esparza, 2003 WL 21834970 (S.D.N.Y.), which is neither binding nor persuasive authority for this court.
To the extent that § 521(b) of the New York City Charter, which predates the 2002 amendments, may conflict with the Education Law, the provisions of the Education Law are controlling. Municipal Home Rule Law §§ 10; 11(1)(c).There is no doubt that prior to the enactment of L. 2002, c. 91, defendant would be entitled to the relief sought. See Goldes v. City of New York, 19 A.D.3d 448, 797 N.Y.S.2d 102, (a recent case where the court was applying the pre-2002 Education Law). However, in light of the wholesale transfer of power and *937 responsibility form the Board of Education to the Mayor, the City may not now shield itself from liability by claiming that the Board of Education is the responsible party. Defendant’s motion is denied in its entirety.
Parallel Citations
9 Misc.3d 934, 203 Ed. Law Rep. 789, 2005 N.Y. Slip Op. 25374
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