Helen Turner Williams, respondents, v. Luis H. Gonzalez, et al., defendants, Chappaqua Central School District, et al., appellants.

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Supreme Court, Appellate Division, Second Department, New York.

Helen Turner Williams, respondents, v. Luis H. Gonzalez, et al., defendants, Chappaqua Central School District, et al., appellants.

2012–06345 (Index No. 54962/11)

Decided: January 22, 2014

WILLIAM F. MASTRO, J.P. REINALDO E. RIVERA JOHN M. LEVENTHAL CHERYL E. CHAMBERS, JJ. Henderson & Brennan (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Christine Gasser], of counsel), for appellant Chappaqua Central School District. Hodges Walsh & Slater LLP, White Plains, N.Y. (Leicia Grant and Paul E. Svensson of counsel), for appellant Town of New Castle. Weisfuse & Weisfuse, LLP, New York, N.Y. (Martin H. Weisfuse of counsel), for respondents.

Argued—November 14, 2013

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant Chappaqua Central School District appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Tolbert, J.), dated May 2, 2012, as granted that branch of the plaintiffs' motion which was pursuant to General Municipal Law § 50–e(6) for leave to serve an amended notice of claim upon it and denied its cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it or, alternatively, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, and the defendant Town of New Castle separately appeals, as limited by its brief, from so much of the same order as granted that branch of the plaintiffs' motion which was pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim upon it.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the cross motion of the defendant Chappaqua Central School District which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and substituting therefor a provision granting that branch of the cross motion, and (2) by deleting the provision thereof granting that branch of the plaintiffs' motion which was pursuant to General Municipal Law § 50–e(6) for leave to serve an amended notice of claim upon the defendant Chappaqua Central School District, and substituting therefor a provision denying that branch of the motion as academic;  as so modified, the order is affirmed insofar as appealed from, one bill of costs to the defendant Chappaqua Central School District payable by the plaintiffs and one bill of costs to the plaintiffs payable by the defendant Town of New Castle.

The infant plaintiff, a student at Seven Bridges Middle School (hereinafter the school), allegedly was injured when he was struck by a vehicle operated by the defendant Luis H. Gonzalez while crossing a public road on his way to the school.   Thereafter, the infant plaintiff, by his parents, and his parents suing derivatively, commenced this action against Gonzalez, the County of Westchester (hereinafter the County), the Chappaqua Central School District (hereinafter the District), and the Town of New Castle (hereinafter the Town).

The Supreme Court properly granted that branch of the plaintiffs' motion which was pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim upon the Town. In opposition to that branch of the motion, the Town argued that leave to serve a late notice of claim should be denied because the proposed claim has no merit.   While the merits of a claim ordinarily are not considered on a motion for leave to serve a late notice of claim, leave should be denied where the proposed claim is patently without merit (see Matter of Catherine G. v. County of Essex, 3 NY3d 175, 179;  Matter of Day v Greenburgh Eleven Union Free School Dist., 88 AD3d 877;  Matter of Gaeta v Incorporated Vil. of Garden City, 72 AD3d 683, 684).   Here, contrary to the Town's contention, it failed to demonstrate at this stage of the proceedings that the underlying claim against it was patently without merit (see Matter of Day v Greenburgh Eleven Union Free School Dist., 88 AD3d 877;  Matter of Billman v. Town of Deerpark, 73 AD3d 1039, 1040;  Burke v Incorporated Vil. of Hempstead, 156 A.D.2d 630, 631).

The District established its prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against it.   The District demonstrated that it had no duty to supervise the infant plaintiff, who was injured while not within the District's custody and control (see Pratt v. Robinson, 39 N.Y.2d 554;  Silver v. Cooper, 199 A.D.2d 255, 256).   The District showed that it neither created the allegedly dangerous condition on the public road, nor had a duty to warn of the condition (see Hyland v. City of New York, 32 AD3d 822, 822–823).   Further, school districts have no authority to place traffic signs or markers on any highways (see Gleich v. Volpe, 32 N.Y.2d 517, 522;  see also Moshier v Phoenix Cent. School Dist., 199 A.D.2d 1019, 1020, affd 83 N.Y.2d 947).   In opposition to the District's prima facie showing, the plaintiffs did not submit any evidence which raised a triable issue of fact as to whether the District had undertaken a duty sufficient to hold it liable for the infant plaintiff's accident.   Therefore, the Supreme Court should have granted that branch of the District's cross motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324;  Zurich Depository Corp. v Iron Mtn. Info. Mgt., Inc., 61 AD3d 750, 751).

The issue of whether the plaintiffs should have been granted leave to serve an amended notice of claim upon the District pursuant to General Municipal Law § 50–e(6) has been rendered academic by our determination as to that branch of the District's cross motion which was for summary judgment.

MASTRO, J.P., RIVERA, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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